274 


The   essentials__of_ 

o-overnrneiiS- 


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This  book  is  nuF «"  i^st  date  stamped  ^f.\Qn 


BOUTHERN  BRANCH, 

l3fWERSITY  OP  CALIFORNIA, 

LlBf?ARY, 

ILDS  ANGELES,  CALIF. 


By  FRANCIS   N.  THORPE 


THE  GOVERNMENT  OF  TUB  PEOPLE  OF  THE  UNITED  STATES 

FRANKLIN  AND  THE   GNIVEIISITY  OF  PENNSYLVANIA 

THE  STORY  OF  THE  CONSTITUTION 

THE  GOVERNMENT  OF  THE  STATE  OF  PENNSYLVANIA 

THE   CONSTITUTION   OF  THE   UNITED  STATES   WITH   BIBLIOGRAPHY 

A  (state)  CONSTITUTIONAL  HISTORY  OF  THE  AMERICAN  PEOPLE  177C- 
1850  (2  VOLS.) 

THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED  STATES  1765-1895 
(3  VOLS.) 

A  HISTORY  OF  THE  UNITED  STATES  FOR  SCHOOLS 

A  (social  and  industrial)   HISTORY  OF  THE  AMERICAN  PEOPLE 

THE  LIFE  OF  WILLIAM  PEPPER,   M.D.,   LL.D. 

THE  SPOILS  OF  EMPIRE — A  ROMANCE  OF  THE  OLD  WORLD  AND  THE 
NEW 

SHORT  CONSTITUTIONAL  HISTORY  OF  THE  UNITED  STATES 

THE  DIVINING  ROD 

THE  HISTORY  OF  THE  CIVIL  WAR — NATIONAL  VIEW 

THE  FEDERAL  AND  STATE  CONSTITUTIONS,  COLONIAL  CHARTERS, 
AND  OTHER  ORGANIC  LAWS  OF  THE  STATES,  TERRITORIES  AND 
COLONIES  NOW  OR  HEUKTOFORE  FORMING  THE  UNITED  STATES 
OF  AMERICA    (7  VOLS.) 

HISTORY:    THE  CAREER  OF  MAN  ON  THE   EARTH 

TEE  STATESMANSHIP  OF  ANDREW  JACKSON 

AN  AMERICAN  FRUIT  FARM 

THE  ESSENTIALS  OF  AMERICAN  CONSTITUTIONAL  LAW 


THE  ESSENTIALS  OF 
AMERICAN  GOVERNMENT 


The  Essentials 
of 

American    Government 


By 

Francis  Newton  Thorpe,  Ph.D.,  LL.D. 

Professor  of  Political  Science  and  Constitutional  Law 
University  of  Pittsburgh 

Author  of  "The  Constitutional  History  of  the  United  States";  "The 

Essentials  of  American  Constitutional  Law";  (Editor  of) 

"American  Constitutions,  Charters,  and  Organic 

Laws  of  the  United  States,"  etc.,  etc. 


^ 


G.  P.  Putnam's  Sons 

New  York  and    London 

tlbe    IRnickerbochcr    ipress 

1922 


Copyright,  1922 

by 

Francis  N.  Thorpe 


Made  in  the  United  States  of  Aniarica 


y'^ 


0  t\ 


*  AD  *  JUVENES  * 

*  LEGUM  *  STUDIOSOS  * 

*  QUANDO  * 
*  ADVOCATOS  *  JUDICES 
*  LEGISLATORES  * 
*  HODIE  * 

*  ANNORUJ.I  *  AMICOS  * 

*  HIC  *  LIBELLUS  * 
*  DEDICATUS  * 


The  principle  of  representation  is  the  pivot  on  which  the 
American  and  all  other  Republics  move. 

—The  Federalist,  LXIII. 

"  For  one  may  not  imagine  man's  unjust  decrees  to  be  laws- 
all  men  defining  law  to  arise  out  of  the  fountain  of  justice." 

— Cicero,  De  Legibus,  I. 

••  The  wise  man  is  the  State." — Emerson,  Politics. 


SUGGESTIONS 

It  is  somewhat  presumptuous  to  attempt  to 
reduce  American  Government  to  its  essential 
principles.  The  subject  is  difficult — more  or  less 
technical  and  quite  beyond  the  compass  of  any- 
one book.  Therefore,  in  writing  the  present 
volume,  the  author  cites  many  books  in  which 
the  matter  under  immediate  consideration  is 
discussed  at  length.  The  rule  of  rules  for  the 
student  of  American  government  is  Multum,  not 
Multa.  There  is  peril,  if  only  the  principle  be 
considered,  that  what  knowledge  is  gained  will 
be  an  acquaintance  with  abstractions;  if  the  ex- 
ample, or  illustration  alone  is  considered,  the 
peril  is  of  a  memory  of  facts  more  or  less  tem- 
porary, or  isolated.  Government  is  essentially 
organic  in  nature  and  must  be  studied  as  an 
organism. 

In  order  to  make  possible  a  fair  knowledge  of 
our  government  in  its  various  forms  or  applica- 
tions, a  person  should  have  experience  in  its 


X  Suggestions 

operations — but  such  experience  is  practically 
possible  for  few.  Knowledge  must  be  gained 
from  books,  or  from  intercourse  with  officials,  or 
from  observation  of  the  workings  of  government 
in  its  numberless  details — and  such  knowledge  is 
possible  to  few.  Therefore  books  remain  the 
principle  source  of  information.  A  brief  selec- 
tion of  authoritative  books  on  the  subject  in  hand 
is  given  at  the  close  of  the  present  volume,  and 
references  to  such  books  are  freely  made  in  the 
several  chapters.  There  is  a  large  mass  of  cur- 
rent publications  on  the  subject,  varying  from 
the  Congressional  Record,  to  editorials,  pam- 
phlets, and  articles  in  newspapers  and  magazines. 
Important  contributions  to  an  understanding 
of  American  Government  are  the  utterances, 
printed  or  oral,  characteristic  of  any  political 
campaign.  The  available  sources  of  information 
concerning  government  in  America  are  therefore 
innumerable.  The  present  work — The  Essentials 
of  American  Government — undertakes  to  call 
attention,  in  a  simple  way  to  the  principles  on 
which  that  government  rests.  These  principles 
are  few  in  number;  the  application  of  them  is 
various;  the  examples  are  innumerable.  That 
person  understands  American  Government  who 


Suggestions  xi 

knows  the  principle  exemplified  by  any  operation 
of  it.  It  is  possible  to  know  the  particular  opera- 
tion and  not  to  understand  the  principle. 

If  this  volume  is  used  as  a  textbook,  the  in- 
structor will  undoubtedly  supplement  the  mate- 
rial here  presented,  with  lectures  discussing  more 
or  less  at  length,  according  to  the  time  available, 
the  essentials  here  presented.  Thus  if  he  uses  his 
own  information,  or  that  conveyed  in  the  vol- 
umes of  a  selected  library  on  the  subject  (such 
as  is  outlined  at  the  close  of  the  volume)  he  can 
bring  to  his  class  a  vast  mass  of  fresh  information 
which,  given  in  form  of  lectures,  may  be  sub- 
stantially recorded  by  the  student  in  his  notes. 
A  small,  compact  textbook  which  presents  a 
general  outline  of  the  subject,  placed  in  the  hands 
of  the  student  and  supplemented  by  lectures  by 
the  instructor,  with  quizzes,  discussions,  note- 
taking,  and  examinations — oral  and  written — 
with  utilization  of  authorities,  documentary  * 
matter  and  readings  by  the  student,  should 
produce  the  results  desired.  If  the  book  given  to 
the  student  contains  an  excessive  amount  of  de- 
tails, the  work  is  in  peril  of  becoming  merely  of 
memory  instead  of  reflection.  Recitation  from  a 
textbook  gives  results  incomparably  inferior  to 


xii  Suggestions 

those  to  be  secured  from  a  combination  of  text- 
book lectures,  notes,  and  the  traditional  discus- 
sions and  examinations. 

The  instructor  may  advantageously  bring  into 
the  class  an  authority — (be  it  primary  as  a  docu- 
ment, or  secondary  as  a  treatise) — and  read  from 
it  as  may  seem  expedient,  or  he  can  have  the  pas- 
sage or  passages  made  available  to  the  class  by 
mimeograph  or  blackboard  copy.  The  living 
voice  of  the  instructor  will  always  be  found  to  be 
the  most  valuable  organ,  or  instrument  in  in- 
struction. It  is  more  desirable  that  the  student 
should  master  and  understand  a  few  things  well 
than  many  things  badly.  The  classic  Socratic 
method  of  instruction  by  suggestive  questioning 
has  never  been  surpassed  in  value,  nor  wisely 
supplanted.  It  may  be  remembered  that  the 
student  is  likely  to  spend  his  life  in  America  and 
should  ever  be  increasing  his  possession  of  de- 
tailed facts  about  American  government.  If  he 
is  well  grounded  in  the  principles  of  that  govern- 
ment, the  details  he  may  learn  through  life  will 
arrange  themselves  according  to  these  principles. 
Procedure  of  this  sort  in  the  study  of  American 
Government  is  precisely  the  procedure  followed 
in  technical  schools, — such  as  those  of  Law  or  of 


Suggestions  xiii 

Medicine.  The  principles  of  law,  illustrated  by 
relevant  cases,  are  essentially  all  that  the  best 
of  Law  Schools  attempt  to  teach.  It  is  reason- 
able to  suppose  that  if  a  lawyer  can  grasp  legal 
principles  he  can  understand  particular  cases. 
It  may  well  be  doubted  whether  a  multiplicity  of 
details,  complex  in  character  and  memorized 
more  or  less  arbitrarily,  are  as  educational  as 
adequate  reflection  on  the  principles  which  the 
details  merely  illustrate.  Whether  or  not  the 
instruction  in  any  subject  be  of  fundamentals 
carefully  but  not  too  voluminously  illustrated, — 
or  be  memoriter  and  encyclopedic, — and  instruc- 
tors appear  to  be  divided  in  opinion  as  to  the 
relative  merits  of  the  two  methods, — this  little 
book  is  written  and  sent  forth  for  the  use  of  the 
profession,  with  the  appreciation  of  the  author  of 
the  reception  given  his  former  contributions  to 
the  study  of  American  Government, — State  and 
National. 

Francis  Newton  Thorpe. 

University  of  Pittsburgh, 

Department  of  Political  Science,  1922. 


CONTENTS 


:hapter 

PAGE 

SUGGESTIONS 

• 

vii 

I. 

—Sovereignty 

. 

3 

II.- 

—The  Fundamentals  of 

Government 

10 

III.- 

—The  American  State 

. 

16 

IV. 

—The  United  States 

• 

27 

V.- 

—The  Citizen 

. 

40 

VI.- 

—Cities 

. 

.     '47 

VII.- 

—The  Supreme  Law 

. 

61 

VIII. 

— The  Legislative 

. 

70 

IX. 

—The  Executive     . 

. 

88 

X. 

—The  Judiciary 

. 

96 

XI. 

—The  Administrative 

• 

107 

XII. 

—Political  Parties 

. 

115 

XIII.- 

—Public  Opinion 

. 

124 

XIV.- 

—International  Relatic 

)NS       . 

133 

XV.- 

—The  Principles  of  Am 

ERICAN   GOVERN- 

MENT 

,             ,             , 

142 

XV 


XVI 


Contents 


Appendix: 

I. — A  Word  About  the  Books 

II. — The       Constitution       of 
United  States  of  America 

III. — Cases  Cited 

IV. — Index       .... 


the 


149 

155 
183 
185 


THE  ESSENTIALS  OF 
AMERICAN  GOVERNMENT 


THE  ESSENTIALS  OF 
AMERICAN   GOVERNMENT 

CHAPTER  I 

SOVEREIGNTY 

1.  In  any  country,  government  takes  the 
form  given  it  by  the  prevaiUng  idea  of  sover- 
eignty. Government  means  control  and  refers 
primarily  to  the  public  business.  The  grand 
movement  in  government, — as  recorded  by  his- 
tory, is  from  individualism  to  communism:  that 
is,  from  control  of  human  interests  by  one,  and 
for  one, — the  individual,  to  control  by  all,  for 
all, — the  community, — the  whole  people.  Sover- 
eignty, therefore,  has  a  different  meaning  at 
different  times,  and  among  different  peoples. 
Doubtless  the  extreme  differences  in  its  meaning 
are  seen  in  the  differences  between  a  government 
which  is  embodied  in  one  person, — that  is,  an 
absolute  monarchy;  and  a  government  which  is 

3 


4      Essentials  of  American  Government 

embodied  in  all  persons, — that  is  a  free  de- 
mocracy. Neither  such  a  monarchy  nor  such 
a  democracy  exists  to-day. 

2.  Democracy  means  rule  or  government  by 
the  people.  The  Constitution  of  the  United 
States  which  defines  itself  as  "the  supreme  law  of 
the  land,"  also  declares  itself  as  "ordained  and 
established  by  the  people  of  the  United  States." 
It  also  declares  that  "representatives"  and 
"taxes"  shall  be  apportioned  among  people  of 
the  several  States,  though  taxes  on  incomes  may 
be  laid  and  collected  without  apportionment  and 
without  regard  to  any  census. 

3.  Representatives  are  apportioned  to  popu- 
lation, and  the  principle  of  representation  is  the 
basis  of  American  government, — Federal,  State, 
and  of  course,  the  subdivisions  of  the  State, 
counties,  cities,  towns,  boroughs,  townships,  and 
villages.  In  other  words,  ours  is  a  republican,  or 
representative  government.  The  Supreme  Law 
of  America  declares  that  "the  United  States 
shall  guarantee  to  each  State  a  republican  form 
of  government." 

4.  No  less  an  authority  than  Madison,  in  the 
Federalists^  the  classic  exposition  of  the  meaning 

*  No.  xxxix. 


Sovereignty  5 

of  the  Constitution,  and  of  the  nature  of  our 
government, — explains  and  defines  it: 

5.  The  Constitution,  or  form  of  government 
under  which  we  Hve,  national  or  State,  is  founded 
on  the  assent  and  ratification  of  the  people  of 
America,  given  by  their  representatives  elected 
by  them  for  the  special  purpose. 

6.  In  assenting  to  the  Constitution,  the  peo- 
ple acted  by  States, — because,  as  Chief-Justice 
Marshall  has  said,  they  could  act  in  no  other 
way.'  The  representatives  of  the  people,  in 
either  branch  of  Congress,  or  of  the  State  Legis- 
latures derive  their  powers  from  the  people.  So 
too  do  all  governors  and  judges,  for  these  also 
represent  the  people.  The  mere  'procedure  by 
which  a  public  servant  attains  ofiice,  whether  by 
direct  election  by  the  people, — as  is  the  case  of  all 
members  of  Congress  and  State  Legislatures, 
also  of  Governors  and  with  few  exceptions,  of 
State  judges, — or  by  indirect  election,  as  in  case 
of  the  President  of  the  United  States;  or  of  ap- 
pointment by  the  President, — as  in  case  of  mem- 
bers of  the  Cabinet,  of  federal  judges,  or  federal 
oflScials  in  any  public  service, — or  of  appoint- 
ments by  a  governor,  of  whatsoever  rank,  is 

«  McCuUoch  V.  Maryland,  4  Wheaton,  316  (1819). 


6  Essentials  of  American  Government 

essentially  based  upon  the  representative  prin- 
ciple. The  source  of  authority  in  every  instance 
is  the  people.  Be  that  authority  legislative, 
executive,  justicial,  or  administrative,  it  is 
created  and  exists  by  the  will  of  the  people.  Law- 
makers, governors,  presidents,  judges,  adminis- 
trative officials,  all  and  each,  are  public  servants, 
— chosen  by  the  people  as  their  agents. 

7.  Thus,  in  American  government,  we  come 
to  the  people  of  the  United  States  as  the  sole 
source  of  governmental  authority.  This  pro- 
found truth  is  well  expressed  by  Bryce:  "To  the 
people  we  come  sooner  or  later;  it  is  upon  their 
wisdom  and  self-restraint  that  the  stability  of 
the  most  cunningly  devised  scheme  of  govern- 
ment will  in  the  last  resort  depend." 

8.  Sovereignty,  in  America,  resides  in  the 
American  people.  State  sovereignty,  in  the 
people  of  a  State;  national  sovereignty,  in  the 
people  of  the  United  States.  Constitutions  of 
government.  State  or  national,  are  schemes  for 
conducting  the  public  business  of  the  State,  or  of 
the  United  States.  The  sovereign  people,  of  the 
State,  or  of  the  United  States,  limit  the  power  of 
their  agents, — public  officials,  by  these  constitu- 
tions.   In  a  State  constitution,  the  fundamental 


Sovereignty  7 

limitation  is  the  Bill  of  Rights;  in  the  federal 
Constitution,  the  limitation  is  the  instrument 
itself.  The  nearest  approach  to  an  unlimited 
grant  of  power  by  the  sovereign  to  its  agent  is 
the  Sixteenth  Amendment  to  the  Constitution  of 
the  United  States.  In  the  administration  of  the 
two  governments, — the  State  and  the  Federal, 
each  exercises  delegated  powers.  The  word  "ju- 
risdiction" is  commonly  used  as  synonymous  with 
"sovereignty."  Thus,  the  public  jurisdiction 
of  a  State  is  a  measure  of  its  sovereignty.  Other 
words  are,  "power,"  "authority,"  and  some- 
times, "right"  or  "rights." 

9.  The  word  "sovereignty,"  or  "sovereign" 
does  not  occur  in  the  Constitution  of  the  United 
States.  The  United  States  is  a  Nation,  and  its 
existence  implies  sovereignty.  The  "police 
power"  or  "jurisdiction"  of  a  State  is  sometimes 
called  ' '  residuary  sovereignty . "  As  yet  no  exact, 
definite,  unchangeable  line  of  demarcation  has 
been  drawn  between  State  sovereignty,  and 
national  (federal)  sovereignty.  We  are  now 
prepared  for  the  decision  of  the  Supreme  Court, 
as  to  sovereignty : ' 

'  Yick  Wo  V.  Hopkins,  118  U.  S.  356  (1886)  (here  quoted).  The 
grand  issue.  National  v.  State  sovereignty,  is  discussed  in  McCul- 


8  Essentials  of  American  Government 

When  we  consider  the  nature  and  the  theory  of  our 
institutions  of  government  and  the  principles  upon  which 
these  are  supposed  to  rest,  and  review  the  history  of  their 
development,  we  are  constrained  to  conclude  that  they 
do  not  mean  to  leave  room  for  the  plan  and  action  of 
purely  personal  power.  Sovereignty  itself  is,  of  course, 
not  subject  to  law,  for  it  is  the  author  and  source  of  law; 
but  in  our  system,  while  sovereign  powers  are  delegated 
to  the  agencies  of  government,  sovereignty  itself  remains 
with  the  people,  by  whom  and  for  whom  all  government 
exists  and  acts.  And  the  law  is  the  definition  and  limita- 
tion of  power.  It  is,  indeed,  quite  true,  that  there  must 
always  be  lodged  somewhere,  and  in  some  person  or 
body,  the  authority  of  final  decision;  and  in  many  cases 
of  mere  administration  the  responsibility  is  purely  politi- 
cal, no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opin- 
ion or  by  means  of  the  suffrage.  But  the  fundamental 
right  to  life,  liberty,  and  the  pursuit  of  happiness,  con- 
sidered as  individual  possessions,  are  secured  by  those 
maxims  of  constitutional  law,which  are  the  monuments 
showing  the  victorious  progress  of  the  race  imsecuring  to 
men  the  blessings  of  civilization  under  the  reign  of  just 
and  equal  laws,  so  that,  in  the  famous  language  of  the 
Massachusetts  Bill  of  Rights,  the  government '  of  the 
Commonwealth  "  may  be  a  government  of  laws  and  not  of 
men."  For  the  very  idea  that  one  man  may  be  com- 
pelled to  hold  his  life,  or  the  means  of  living,  or  any 
material  right  essential  to  the  enjoyment  of  life,  at  the 
mere  will  of  another,  seems  to  be  intolerable  in  any 

loch  V.  Maryland,  4  Wheaton,  316.  There  is  a  vast  literature  on  the 
subject.  See  the  account  passim  in  Beveridge's  Life  of  Marshall; 
also,  "The  New  Nationalism  and  Its  Obligations"  by  R.  S.  Baker,  in 
American  Bar  Association  Journal,  November,  1921,  601-605. 


Sovereignty  9 

country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself. 

The  actual  test  of  all  theories  is  made  by  the 
administration  of  government. ' 

10.  Sovereignty  in  America  prescribes  the 
procedure  by  which  constitutions,  laws,  judicial 
decisions,  and  (public)  official  appointments 
shall  be  made.  Thus  sovereignty  determines 
both  the  substance  and  the  form  of  government 
in  America.^ 

'  An  admirable  presentation  of  sovereignty  may  be  found  in  J.  W. 
Garner's  Introduction  to  Political  Science  (see  its  Index),  "Sover- 
eignty." Marshall  discriminates  between  Federal  and  State  Sover- 
eignty in  McCulloch  v.  Maryland.  4  Wheaton,  316  (1819).  See  id., 
428,  429,  430.  Discussion  of  sovereignty  as  applying  to  the  Con- 
stitution of  the  United  States  recurs  in  the  Federalist.  See  specially 
Nos.  xxxii,  xlxx,  xlxxx  (Lodge  Edition). 

'  American  history  supplies  many  examples  and  illustrations. 
E.g.,  the  Constitution  of -the  United  States;  the  Louisiana  Purchase; 
the  Organization  of  Territories;  their  admission  as  States;  the  proce- 
dure in  making  a  new,  or  amending  an  old  State  constitution. 


CHAPTER  II 

THE  FUNDAMENTALS  OF  GOVERNMENT 

1.  As  government  is  the  conduct  of  public 
business,  and  as  this  business  concerns  the  people 
as  a  whole,  and  the  people  as  individuals,  the 
fundamentals  of  government  are  principles  af- 
fecting the  people  as  a  whole,  or  as  individuals. 

2.  The  exact  order  of  these  principles  may  be 
considered  as  of  slight  importance.  We  are 
accustomed  to  the  order  observed  in  the  Pre- 
amble to  the  Constitution  of  the  United  States: 

(1)  To  establish  justice. 

(2)  To  insure  domestic  tranquillity. 

(3)  To  provide  for  the  common  defense. 

(4)  To  promote  the  general  welfare. 

(5)  To  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity.  I 

3.  These  five  purposes  of  government  as  set 
forth  in  the  Preamble  of  the  Federal  Constitution 
are  equally  the  purposes  sought  in  every  State 
constitution.     It  may  be  said  that  the  purpose  of 

lO 


The  Fundamentals  of  Government  n 

all  is  set  forth  by  the  first, — "to  establish  jus- 
tice,"— for,  in  the  American  idea  of  government, 
the  establishing  of  justice  is  the  securing  of  all 
the  other  purposes.  To  the  end  that  justice  may 
be  established,  government  in  America  exists. 
Legislatures,  Governors,  Presidents,  Congresses, 
Courts  of  Law,  and  Administrative  oflScials  of 
whatever  rank,  service  or  department,  are  chosen. 
The  failure  to  establish  justice  is  the  failure  of 
government.  That  government  has  excuse  for 
being,  which  establishes,  or  is  the  means  of 
establishing  justice. 

4.  In  thus  establishing  justice,  every  power, 
function,  or  ofHce  of  government  is  engaged. 

(1)  Taxes  are  imposed. 

(2)  Moneys  are  appropriated. 

(3)  Representatives,  legislative,  executive, 
judicial,  administrative  are  chosen. 

(4)  Laws  are  made. 

(5)  Decisions  are  given  by  courts  of  law. 

(6)  War  or  peace  is  declared. 

Indeed,  the  entire  activity  of  government  is  a 
ceaseless  effort  to  establish  justice. 

5.  If  you  turn  to  any  one  of  the  American 
plans  of  government, — and  there  are  forty-eight 
State  governments  and  many  hundreds  of  city 


12  Essentials  of  American  Government 

governments, — also  the  national  government, — 
and  these  plans  are  the  American  Constitutions, 
city  charters,  and  laws,  you  will  find  the  same 
large  purpose:  the  establishing  of  justice.  That 
the  American  people  recognize  and  accept  this 
dominant,  this  primary  principle  is  shown  by 
their  respect  for  law  as  interpreted  by  courts  of 
law,  and  notably,  by  the  Supreme  Court  of  the 
United  States.  That  Court  is  a  constitutional 
court  and  possesses  by  the  will  of  the  sovereign 
people  of  the  United  States,  supreme  judicial 
power.  Its  members  are  called  "Justices."  Its 
presiding  member  is  styled  "Chief  Justice  of  the 
United  States."  Consisting  of  nine  men,  this 
Court  rules  the  United  States.  The  official 
opinion  of  five  of  these  men  is  the  opinion  of  the 
Court.  It  exists, — a  unique  creation  in  govern- 
ment,— representative  of  American  sovereignty, 
"to  establish  justice."  Its  decision  in  any  case 
is  final, — unless  the  Sovereign  invalidates  that 
opinion,  as,  for  example,  it  invalidated  its  opin- 
ion in  the  Dred  Scott  case.'  That  decision  was 
nullified   by   the   adoption   of   the   Thirteenth, 


»Dred  Scott  v.  Sanford,  19  Howard,  393  (1857);  so  Chisholm  v. 
Georgia,  2  Dallas,  419  (1793)  Mas  nullified  by  the  adoption  of  the 
Eleventh  Amendment. 


The  Fundamentals  of  Government  13 

Fourteenth,  and  Fifteenth  Amendments.  The 
sovereign  in  America  is  not  easily  aroused.  But 
aroused,  he  dictates  the  supreme  law. 

6.  In  establishing,  or  attempting  to  establish 
justice,  the  American  people,  organized  by  States 
express  their  will  by  the  ballot, — as  nation,  state, 
county,  city,  township,  town,  municipality  of 
whatever  sort.  The  miscarriage  of  justice, — in 
our  common  speech, — refers  to  errors,  or  seeming 
errors,  in  strictly  judicial  proceedings;  but  in  a 
large,  and  equally  correct  sense,  justice  may  be 
missed  or  ignored  by  lawmakers,  governors,  or 
administrative  officials. 

7.  There  is  a  maxim  of  law  that  every  legal 
wrong  has  a  legal  remedy.  This  maxim,  which 
points  to  a  principle  of  government  in  America, 
may  be  better  understood  by  means  of  illustra- 
tions. Thus  our  legislatures  consist  of  two 
branches  or  houses.  A  bill  or  resolution  is  thus 
considered  by  two  independent  bodies.  Having 
passed  these  bodies,  the  bill  goes  to  the  executive 
for  his  approval.  He  (influenced  more  or  less  by 
his  Cabinet,  or  Council  of  Advisors)  approves  or 
disapproves  the  bill, — thus  subjecting  it  to  a 
third  test.  If  passed  by  the  legislature  over  his 
veto  (disapproval, — for  which  he  sets  forth  his 


14  Essentials  of  American  Government 

reasons)  it  is  again  subject  to  scrutiny.  But  the 
test  does  not  necessarily  stop  here.  The  large 
question  may  be  raised,  in  the  prescribed  way, 
*'Has  the  legislature  power  to  enact  this  law.?^" 
a  question  which  only  a  Court  of  Law  can 
answer, — and  a  Court  of  law  "hears  before  it 
condemns;  proceeds  upon  inquiry,  and  renders 
judgment  only  after  trial."' 

8.  Thus  the  legality  (constitutionality)  of  the 
law  is  authoritatively  known.  It  will  be  noted 
that  the  supreme  test  is  that  of  power^  which 
means,  Has  the  American  sovereign,  the  people 
of  the  United  States  (or  of  a  State)  empowered 
the  Legislature  to  enact  this  (so-called)  law? 
And  no  other  final  test  is  possible,  according  to 
the  American  system  of  government.  That  the 
sovereign  people  could  empower  (say)  Congress 
to  enact  such  a  "law"  as  the  "Civil  Rights  Bill" 
(April  9,  1866;  March  1,  1895),^  and  having 
empowered  Congress  to  enact  such  a  law,  such  a 
law  was  enacted,  the  constitutionality  of  such  a 
law  would  be  sustained  by  the  Supreme  Court, — 
because  Congress  was  empowered  to  make  such  a  law. 

9.  Thus   the   constitutionality   of  our  laws 

'  Webster,  in  the  Dartmouth  College  Case. 

'  Declared  unconstitutional,  U.  S.  v.  Stanley,  109  U.  S,  3  (1883). 


The  Fundamentals  of  Government   15 

depend,  primarily,  on  the  delegation  of  power,  by 
the  sovereign  people,  to  enact  such  laws.  And 
by  our  system  of  government,  our  courts  of 
law  decide  whether  a  legislative  body  has  power 
(so  delegated)  to  enact  such  laws.'  The  conclu- 
sion inevitable  from  these  conditions  is  that  the 
sovereign  power  in  a  state  (whatever  it  be, — 
nation,  commonwealth,  empire,  &c.)  declares, 
determines,  establishes,  what  is  justice,  domestic 
tranquillity,  common  defense,  general  welfare, 
and  ideas  of  liberty.  We  get  back  to  sovereignty 
whenever  we  trace  the  fundamentals  of  govern- 
ment to  their  source.  Whatever  sovereignty 
declares  is  justice,  or  any  other  fundamental 
right,  is — legally  speaking,  that  fundamental 
right.'' 

'  The  principle  is  discussed  by  Marshall  in  Marbury  v.  Madison, 
1  Cranch,  137  (1803). 

'  The  question  of  what  are  the  fundamentals  of  government  in- 
volves ethics.  Government  rests,  or  is  supposed  to  rest,  on  morals. 
That  which  is  legally  right  may  not  seem  (or  be)  morally  right.  All 
moral  wrongs  (to  attempt  a  synonym  for  immoral  acts)  do  not  have 
legal  remedies.  Decisions  of  courts  of  law  are  legal  decisions.  Grave 
difficulties  emerge  in  politics,  as  in  ethics,  theology,  or  any  aspect  of 
philosophy.  But  sovereignty  establishes  the  fundamentals  in  ethics, 
politics,  theology,  or  any  aspect  of  philosophy.  But  what  is  sover- 
eignty? Is  it  a  convention  agreed  upon.'  The  instructor  may  profit- 
ably take  up  any  of  the  powers  of  Congress  (Article  I.,  Section  8) 
or  similar  provisions  in  a  State  constitution,  and  note  relations  to 
fundamental  principles  of  "a  republican  form  of  government." 


CHAPTER  III 

THE    AMERICAN    STATE 

1.  The  State,  or  Commonwealth,  as  the  word 
is  used  in  American  law  and  government  is  "a 
political  community  of  free  citizens,  occupying  a 
territory  of  defined  boundaries,  and  organized 
under  a  government  sanctioned  and  limited  by  a 
written  Constitution,  and  established  by  the 
consent  of  the  governed.  It  is  the  union  of  such 
States,  under  a  common  constitution,  which 
forms  the  distinct  and  greater  political  unit, 
which  that  Constitution  designates  as  the  United 
States,  and  makes  of  the  people  and  States  which 
compose  it,  one  people  and  one  country.  .  .  . 
The  Constitution,  in  all  its  provisions,  looks  to  an 
indestructible  Union  of  indestructible  States."* 
The  Constitution  was  made  for  States,  not  for 
cities  or  territories.  Indeed,  the  three  elements 
considered  by  the  Constitution  are  the  States, 
the  United  States,  and  the  citizen. 

'  Texas  v.  White,  7  Wallace,  700  (1868). 

I6 


The  American  State  i7 

2.  The  several  States  which  comprise  the 
Union  are  individually  equal  as  civil  and  politi- 
cal entities.  This  equality  is  not  and  could  not 
be  geographical,  or  in  wealth,  or  in  population. 
The  Constitution,  guaranteeing  to  each  State  a 
republican  form  of  government,  recognizes  it  as 
a  civil  and  political  entity,  apportioning  repre- 
sentatives among  the  States  according  to  their 
respective  populations.  This  means  that  the 
basis  of  representation  of  a  State  in  Congress  is 
persons,  not  things. 

3.  Within  a  State,  persons,  not  things,  are 
also  the  basis  of  representation.  Thus  funda- 
mentally, the  basis  of  government  in  America 
both  State  and  federal  is  persons.  It  is  important 
that  this  fact  be  clearly  understood. 

4.  Seemingly  the  representation  of  the  States, 
as  such  equally,  in  the  Senate  of  the  United 
States, — a  representation  defined  in  the  Con- 
stitution as  a  State's  "equal  suffrage  in  the 
Senate'"  is  not  of  persons,  but  of  corporations, — 
because  every  State  is  a  public  corporation,  and, 
in  law,  a  corporation  is  an  artificial,  not  a  natu- 
ral person. 

5.  But  an  American  State  is   "a  political 

'  Article  V. 


1 8  Essentials  of  American  Government 

community  of  free  citizens," — and  as  such  has 
representation  in  the  persons  of  its  two  Senators. 
For  many  purposes  a  State  is  a  corporation ;  but 
as  a  community  represented  in  the  Congress, 
it  is  a  number  of  free  citizens  or  persons.  The 
election  of  United  States  Senators  by  popular 
vote  (Seventeenth  Amendment),'  instead  of  by 
vote  of  a  State  Legislature  (Article  V.,  3),  com- 
plies with  the  fundamental  principle  of  a  repre- 
sentative democracy,  as  defined  by  Madison. 
The  change  from  the  original  method  of  choosing 
Senators  is  a  change  in  mere  method  not  a  change 
in  principle.  The  Senators  represent  all  the 
people  within  the  State.  So  too  do  the  members 
of  the  House  of  Representatives,  in  the  aggre- 
gate. A  State  is  apportioned  its  number  of 
House  members.  Whether  this  number  shall  be 
apportioned  to  subdivisions  of  the  State,  or  shall 
be  apportioned  to  the  people  of  the  State  as  a 
whole, — that  is, — whether  the  State  shall  be 
subdivided  into  Congressional  Districts, — the 
people  of  a  District  electing  a  Representative 
(Congressman)  or  whether  the  State  shall  be  one 
District  and  its  people  elect  its  entire  number 
of  Congressmen, — or  whether  the  State  shall  be 

'  Article  V. 


The  American  State  19 

districted  and  a  part  of  its  number  of  Represen- 
tatives be  so  elected,  and  the  remaining  number 
be  elected  on  a  general  ticket,  as  "Congressmen 
at  large,"  chosen  by  the  people  of  the  States  as 
one  District,  rests  wholly  with  the  State  Legis- 
lature. 

6.  A  similar  practice  may  prevail  for  the 
election  of  presidential  electors.  The  State 
Legislature  is  a  parliamentary  body  on  the  same 
model  as  the  Congress  of  the  United  States.  It 
is  a  constitutional,  not  a  statutory  body,  i.e.,  its 
existence,  organization,  term,  and  powers  are 
defined  by  the  State  Constitution,  not  by  an  act 
of  the  Legislature. 

7.  As  the  State  constitution  is,  with  the 
Constitution  of  the  United  States  and  acts  of 
Congress  and  treaties  made  in  conformity  to  the 
federal  Constitution, — the  Supreme  Law  of  the 
State, — the  people  of  the  State  in  making  its 
constitution,  provide  somewhat  in  detail,  for  a 
Legislative,  an  Executive,  and  a  Judiciary, 
securing  beyond  change, — as  far  as  possible,  the 
essential  organization,  term,  and  powers  of  these 
departments  of  government.  As  population 
changes  and  conditions  cannot  be  anticipated, 
the  laws  regulating  representation,  whether  of 


20  Essentials  of  American  Government 

the  people  of  a  State  in  the  federal  legislature,  or 
in  a  State  Legislature  are  statutory  rather  than 
constitutional.  Thus  the  State  Legislature  dis- 
tricts the  State  for  various  representative  pur- 
poses, into 

(1)  Congressional  Districts. 

(2)  (State)  Senatorial  Districts, 

(3)  Assembly  Districts, 

(4)  (State)  Judicial  Districts, 

(5)  (Possibly)  Presidential  Electional  Districts. 
8.     The  fundamental  here  is  representation. 

The  principle  as  applied  in  the  judicial  districting 
is  a  matter  of  jurisdiction.  The  judiciary  whose 
jurisdiction  is  the  entire  State  is  elected  by  the 
people  of  the  entire  State,  as  one  district.  Judges 
whose  jurisdiction  is  limited  to  a  portion  of  a 
State  are  elected  by  the  people'  within  that  por- 
tion, or  Judicial  District,  be  it  one  or  more 
counties.  But  a  county  is  not  divided.  Every 
county  is  a  civil  entity,  having  its  county-seat, 
its  judicial  equipment, — court-house,  law-library, 
court  officials,  and  records.  A  Law  Court  is 
held  in  every  county,  though  it  be  part  of  a 


'In  Massachusetts,  New  Jersey  and  Florida  the  Governor  appoints 
the  judges.  (But  see  as  to  Florida,  Constitution,  1885,  Art.  V.,  Sec.  8, 
by  which  the  Governor  appoints  only  the  Circuit  judges.) 


The  American  State  21 

judicial  district.  Whatever  method  of  estabhsh- 
ing  courts  of  law  may  obtain  in  a  State,  it  is 
fundamentally  elective.  As  in  the  federal 
Government  so  in  the  State,  there  are  no  offices 
for  life.  In  Massachusetts  as  in  the  appoint- 
ment by  the  President,  the  judges  hold  office 
*' during  good  behavior,"  but  such  a  term  is  not 
a  term  for  life.  The  holder  of  such  an  office  is 
subject  to  removal  according  to  law.  If  he  held 
an  office  for  life,  he  could  not  be  removed. 

The  principle  here  is  common  to  every  office 
in  the  American  system  of  government.  Madi- 
son expresses  the  principle:  the  government. 
State  and  federal,  is  administered  "by  persons 
holding  their  offices  during  pleasure,  for  a  limited 
period,  or  during  good  behavior." 

9.  Here,  too,  is  applied  the  principle  of 
agency.  In  a  State,  its  governor,  its  legislators, 
its  judges,  its  administrative  officials  are  agents 
of  the  people.  They  exercise,  as  such  agents, 
executive,  legislative,  judicial,  and  administra- 
tive powers  delegated  to  them  by  the  sovereign 
*'the  people  of  the  State." 

The  States  stand  in  like  and  equal  relations 
to  the  United  States, — called  federal  relations, 
and  each  State  to  every  State  in  the  Union,  in 


22  Essentials  of  American  Government 

the  same  relations,  called  inter-State  relations. 
Thus,  irrespective  of  population,  wealth,  area, 
or  location  the  States  comprising  the  American 
Union  are  on  the  same  footing  in  every  govern- 
mental sense.  This  means  the  equality  of 
the  several  States.  Reduced  to  precision, — this 
equality  is  a  legal  equality.  It  is  the  equality 
signified  by  the  Constitution  of  the  United  States : 
"The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  govern- 
ment.'" And  again,  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States."'' 

10.  Indeed,  whatsoever  the  Supreme  Law  of 
the  Land  prescribes  as  to  the  States,  the  equality 
of  the  States  is  expressed  or  implied.  No  two 
States  are  equal  in  any  respect  save  in  legal 
rights.  This  equality  conforms  to  the  primary 
purpose  of  American  government, — "to  estab- 
lish justice." 

11.  The  organization  of  government  in  the 
respective  States  varies  in  many  details  of 
method,  but  agrees  in  principle  and  consequently 
in  purpose. 

12.  Every  State  is  subdivided  into  counties. 

'  Art.  IV.,  Sec.  4.  ^  Art.  IV,  Sec.  2:  1. 


The  American  State  23 

Each  county  is  also  a  public  corporation.  It  has 
its  complement  of  officials, — executive,  legisla- 
tive, judicial,  administrative, — all  agents  of  the 
people.  But  the  county  is  a  part — a  subordinate 
division  of  the  State.  Excepting  officials  whose 
jurisdiction  is  greater  than  the  county, — such 
as  the  governor,  the  supreme  (superior.^)  court 
judges,  legislators  chosen  in  a  district  of  which  the 
county  is  only  a  part, — all  officials  having  author- 
ity in  a  county  are  elected  (directly  or  indi- 
rectly) by  the  people  of  the  county.  But  all 
county  officials  are  State  officials  to  the  extent 
that  in  the  execution  of  their  offices  they  are 
backed  by  the  power  of  the  whole  State.  For 
example,  sheriffs,  county  commissioners,  county 
judges  are,  in  this  sense,  State  officials.  Every 
State  save  one'  is  subdivided  into  counties  and 
new  counties  are  created  by  the  Legislature.  A 
county  is  a  public  corporation,  has  no  executive, 
other  than  the  governor  of  the  State,  and  has  no 
self-government  ("home-rule").    It  is  essentially 

'  Louisiana  is  subdivided  into  parishes.  County  government  has 
been  called  "the  jungle  of  American  politics."  So  various  is  the 
government  of  counties  in  America,  the  instructor  may  advantage- 
ously con.sider  specially  the  actual  county  government  within  his 
own  State.  Thus, — as  to  classification  of  counties;  the  list  and  the 
particular  functions  of  county  officials;  overlapping  ofHccs;  "graft"; 
county  taxes,  and  uses  and  appropriations  of  county  moneys,  etc. 


24  Essentials  of  American  Government 

an  administrative  unit  within  the  State  and  for 
poUtical  purposes  is  (in  whole  or  part)  a  legisla- 
tive (assembly,  senatorial),  or  judicial  district. 
The  State  Legislature  locates  the  county  seat. 
The  people,  usually  by  direct  election,  give  the 
control  of  county  affairs  to  a  group  of  administra- 
tive officials:  the  county  board  (supervisors,  com- 
missioners) who  (in  some  States)  levy  taxes,  and 
(in  all  States)  have  control  of  public  works,  pub- 
lic buildings,  bridges  and  highways,  the  care  of 
the  county  poor;  the  sheriff,  county  clerk,  regis- 
trar of  deeds,  county  (district)  attorney,  treas- 
urer, coroner  (and  other  officials) .  In  New  York 
City,  Philadelphia,  Chicago,  Boston,  St.  Louis, 
Pittsburgh,  and  some  other  large  cities,  county 
and  municipal  government  are  somewhat  com- 
bined, resulting  in  civil  confusion.  If  county 
government  in  America  is  to  any  extent  medi- 
ocre, the  evil  is  due  to  the  people  themselves  who 
elect,  or  suffer  to  be  elected,  mediocre  county 
officials. 

13.  A  county  usually  contains  incorporated 
cities  or  towns  each  possessing  and  exercising 
local  government.  The  authority  for  such 
"home  rule"  may  be  constitutional  or  statutory.' 

»  See  Chapter  VI,  "Cities." 


The  American  State  25 

The  United  States  is  an  indestructible  union  of 
indestructible  States. 

14.  This  means  also  that  the  States  are  as 
necessary  to  the  Union  as  the  Union  is  to  the 
States.  When  the  Constitution  of  the  United 
States  was  adopted,  all  the  States  had  govern- 
ments. As  the  United  States  by  its  Constitu- 
tion) ,  bound  itself  to  guarantee  to  each  State  a 
republican  form  of  government,  the  guarantee 
implies  that  the  several  States, — then  thirteen 
in  number, — had  such  a  government.  These 
governments  the  Constitution  of  the  United 
States  did  not  change.  "They  were  accepted 
precisely  as  they  were  and  it  is  therefore  to  be 
presumed  that  they  were  such  as  it  was  the  duty 
of  the  States  to  provide.  Thus  we  have  unmis- 
takable evidence  of  what  was  republican  in  form 
within  the  meaning  of  that  term  as  employed  in 
the  Constitution." ' 

15.  Each   State  is  an  independent  govern- 

'  Minor  v.  Hippersett,  21  Wallace,  182  (1874).  See  also  Luther  v. 
Borden,  7  Howard,  1  (1848);  Texas  v.  White,  7  Wallace,  700  (1868). 
The  constitutions  (forms  of  government)  of  all  the  States  are  given  in 
The  Federal  and  State  Constitutions,  Colonial  Charters,  and  Other 
Organic  Laws  of  the  States,  Territories,  and  Colonies  Now  or  Heretofore 
Forming  the  United  States  of  America,  compiled  and  edited  (by  the 
author)  under  the  Act  of  Congress  of  June  30,  1906.  Washington 
Government  Printing  OflSce.  1909.  7  vols. 


26  Essentials  of  American  Government 

mental  power,  within  its  own  jurisdiction.  No 
State  is  a  nation,  nor  does  it  stand  in  any  inter- 
national relations.  Precisely  what  constitutes 
the  jurisdiction  of  an  American  State  is  inde- 
finable.'   This  jurisdiction  is  determinable  from 

(a)  the  Constitution  of  the  United  States,  and 

(b)  the  constitution  of  the  State.  It  is  funda- 
mentally a  judicial  question.  Entering  into  the 
solution  of  the  question,  however,  is  public 
opinion,  politics, — i.e.,  law  and  custom. 

IG.  Were  we  to  enter  into  detail,  in  the  mat- 
ter of  State  government,  we  would  discover 
everywhere  the  presence  and  the  operation  of 
the  principle  of  representation.^ 

'  Practically  the  powers — or  jurisdiction  of  an  American  Common- 
wealth— are  determined  by  judicial  interpretation:  (a)  of  its  federal 
relations;  (b)  of  its  interstate  relations. 

2  The  instructor  may  profitably  pursue  the  subject  of  State  govern- 
ment Into  its  details.  The  Manual  (usually  published  by  the  State) 
supplies  the  data. 


CHAPTER  IV 

THE    UNITED    STATES 

1.  The  United  States,  "the  more  perfect 
Union"  is  "an  indestructible  Union  of  inde- 
structible States."  It  is  a  public  corporation, 
and  its  Constitution  was  "framed  for  ages  to 
come."'  Whether  or  not  the  Constitution  of 
American  Union  was  founded  on  the  State 
governments  as  existing  in  1787,  it  was  founded 
on  the  same  plan.-  The  representative  prin- 
ciple is  at  the  basis  of  the  plan.  Essentially,  the 
difference  between  the  application  of  the  prin- 
ciple by  the  States  and  that  by  the  United  States 
lies  in  the  relation  of  the  two  to  the  American 
people.  The  government  of  the  United  States 
is  the  government  of  the  people  of  the  United 
States, — that  is,  of  the  American  people  as  a 
whole, — as  a  nation.    The  government  of  a  State 

»  Marshall  in  Cohens  v.  Virginia,  6  Wheaton,  387-9  (1821). 
*  The  origin  and  authorship  of  the  Constitution  are  narrated  at 
length  in  the  author's  Constitutional  History  of  the  United  States. 

27 


28  Essentials  of  American  Government 

or  Commonwealth  is  that  of  a  part  of  the  Amer- 
ican people,'  as  a  local  community.  Thus  the 
Constitution  of  the  United  States  and  all  treaties 
made  under  its  authority  are  "the  Supreme  law 
of  the  land." 

2.  The  judges  in  every  State  are  bound  by 
the  supreme  law,  "anything  in  the  Constitution 
and  laws  of  any  State  to  the  contrary  notwith- 
standing."" 

The  Constitution  of  the  United  States  works. 
To  use  a  phrase  of  trade,  "it  is  a  going  concern." 

3.  Experience  proves  the  adaptability  of  the 
American  system  of  government, — as  exemplified 
by  that  of  the  United  States, — to  a  continental 
domain.  Experience  alone  can  prove  whether  it 
is  adapted  to  remote  and  outlying  possessions. 
The  real  question  is  whether  the  principle,  as 
principles  on  which  federal  government  in 
America  is  based,  are  adapted  generally  to  any 
race,  people,  climate  in  the  world.  The  funda- 
mental principle  is  that  of  representation.  The 
American  people  are  sovereign.  They  have 
ordained  and  established  the  Constitution  of  the 


•  Examined  at  length   by   Marshall  in   Marbury  v.   Madison,   1 
Cranch,  137  (1803). 
»  Art.  VI.,  2. 


The  United  States  29 

United  States,  forming  "the  more  perfect  Union" 
for  purposes  set  forth  in  the  Preamble  to  that 
Constitution.  Of  these  purposes  the  primary 
and  most  important  is  to  estabHsh  justice.  The 
principle  applied  here  is  that  of  representation. 

4.  The  sovereign  people  are  represented  by 
their  agents,  chosen  by  themselves  to  perform 
certain  specific  functions.  These  functions  are 
recognized  and  called  legislative,  executive,  and 
judicial.  Involved  in  these  functions  are  the 
ministerial,  or  administrative  functions,  and 
generally  speaking,  these  administrative  func- 
tions are  performed  by  persons  who  are  ap- 
pointed by  legislative,  executive,  and  judicial 
officials  who  are  elected  by  the  people.  Thus  all 
the  authority  possessed  by  the  elected  or  the 
appointed  official  is  delegated  by  the  sovereign, 
— and  this  means  a  limited  authority.  Vast  as 
is  this  authority  thus  delegated  it  is  never 
sovereign. 

5.  A  glance  at  these  limitations  makes  this 
clear : 

(1)  The  executive  is  limited  in  time,  by  his 
term  of  office,  and  specifically,  further,  by  the 
legislative  and  the  judiciary  as  set  forth  by  the 
Constitution. 


30  Essentials  of  American  Government 

(2)  The  legislative  is  limited  by  the  executive 
{e.g.,  by  the  veto  power)  and  by  the  judiciary 
{e.g.,  its  power  to  declare  an  act  of  Congress 
unconstitutional, — that  is,  null  and  void). 

(3)  The  judiciary  is  limited  by  the  legislative 
and  the  executive  {e.g.,  by  laws  defining  the  or- 
ganization and  jurisdiction  of  federal  courts). 

(4)  Administrative  officials  are  limited  by 
laws  which  prescribe  their  duties,  powers  and 
procedure.'  In  other  words,  no  federal  oflacial 
is, — as  James  II  claimed  for  himself,  "above 
the  law."  No  person  in  America  is  above  the 
law.  Indeed,  as  the  constitution  of  Massa- 
chusetts declares,  the  purpose  of  the  American 
people  is  that  theirs  "shall  be  a  government  of 
laws,  not  of  men."^ 

6.     The  most  popular  State  paper  known  to 

'  The  principle  involved  in  limitations  is  well  stated  by  Bryce: 
"The  States  are  carefully  safeguarded  against  aggression  by  the 
central  government.  So  are  individual  citizens.  Each  organ  of 
government,  the  executive,  the  legislature,  the  judiciary,  is  made  a 
jealous  observer  and  restrainer  of  the  others.  Since  the  people,  being 
too  numerous,  cannot  directly  manage  their  affairs,  but  must  commit 
them  to  agents,  they  have  resolved  to  prevent  abuses  by  trusting 
each  agent  as  little  as  possible,  and  subjecting  him  to  the  oversight 
of  other  agents,  who  will  harass  and  check  him  if  he  attempts  to  over- 
step his  instructions."  The  American  Commonwealth,  Bryce,  i.,  298 
(First  Edition). 

'  Constitution  17S0.  Part  I.,  xxx.  This  idea  is  repeatedly  stated 
and  applied  by  Chief-Justice  Marshall  in  his  judicial  opinions. 


The  United  States  31 

man, — tlie  Declaration  of  Independence, — utters 
the  same  principle,  that  "all  men  are  created 
equal,"  which  means,  in  governmental  mat- 
ters, that  all  persons  are  equal  before  the  law; 
that  justice  is  no  respecter  of  persons. 

All  governments  of  antiquity  were  founded 
and  administered  on  the  theory  that  theirs 
should  be  a  government  of  men,  not  of  laws. 

7.  Yet  the  American  system  of  government  in 
thus  making  law  supreme  is  not  elevating  an 
abstraction  to  primacy.  "The  law," — said  a 
distinguished  American  judge,  "is  common 
sense."  Happily  we  have  further  light  on  this 
point.  Said  Lincoln :  "Why  should  there  not  be, 
a  patient  confidence  in  the  ultimate  justice  of 
the  people?  Is  there  any  better  or  equal  hope  in 
the  world?"' 

8.  Of  course  this  confidence  carries  with  it 
moral  consequences.  What  if  the  people  have 
perverted  ideas  of  justice?  Dr.  Franklin  seems 
to  have  had  this  thought  in  mind  in  his  words  to 
the  Convention  which  framed  the  Constitution: 
"I  agree  to  this  Constitution  with  all  its  faults, 
if  such  there  be;  because  I  think  a  general 
government  necessary  for  us,  and  there  is  no 

»  First  Inaugural,  March  4,  1861,  Works  (Century  Edition),  II.,  5. 


32  Essentials  of  American  Government 

form  of  government  but  what  may  be  a  blessing 
to  the  people  if  well  administered;  and  I  believe 
further  that  this  is  likely  to  be  well  administered 
for  a  course  of  years,  and  can  only  end  in  des- 
potism, as  other  forms  have  done  before  it,  when 
the  people  shall  become  so  corrupted  as  to  need 
despotic  government,  being  incapable  of  any  other. '""^ 
There  is  a  very  wise  saying:  "As  with  the  people, 
so  with  the  priest.'"'  It  may  be  said,  as  with  the 
people  of  the  United  States,  so  with  the  govern- 
ment they  establish;  as  with  the  people,  so 
with  the  administration.  Lincoln  is  optimistic. 
Franklin  is  apprehensive;  the  Bible  is  historical. 
Any  American  competent  to  form  a  conclusion 
may  draw  inferences  as  to  the  people  and  the 
Government  of  the  United  States.  In  these  days 
when  so  much  is  said  and  done  as  to  American- 
ization, any  American  is  justified  in  applying  in 
the  right  way  Lincoln's  thought  expressed  in  his 
Gettysburgh  Address,  whether  "any  nation  con- 
ceived in  liberty  and  dedicated  to  the  propo- 
sition that  all  men  are  created  equal  .  .  .  can 
long  endure."^ 


'  Elliot,  v.,  554,  September  17,  1787.     (Italics  mine.) 

»  Isaiah,  24:  2. 

3  November  19,  1863,  Works  (Century  Edition  ),  II.,  439. 


The  United  States  33 

9.  The  profound  truth,  remarked  by  Lord 
Bryce,  applies  here:  "to  the  people  at  last  we 
come;  it  is  upon  their  wisdom  and  self-restraint 
that  the  stability  of  the  most  cunningly  devised 
scheme  of  government  will  in  the  last  resort 
depend." 

10.  That  the  stability  of  American  Govern- 
ment and  institutions  depends  upon  the  Amer- 
ican people  is  a  truism  applicable  to  every  aspect 
of  government,  federal  and  State. 

11.  The  immediate  affairs  of  life,  in  America, 
so  far  as  affecting  or  affected  by  government 
look  to  the  State  rather  than  to  the  United 
States.  In  one  form  or  another  most  of  these 
affairs  are  by  way  of  contract,  the  meaning  and 
enforcement  of  which  the  State  determines. 
Thus  except  by  use  of  the  mails,  the  great 
majority  of  the  American  people  have  no  direct 
dealings  with  the  federal  Government.  The 
mail  service  is  a  federal  monopoly,  warranted 
by  the  Constitution  of  the  United  States.  So 
too  is  the  coining  of  money,  and  by  the  term 
"coin"  is  meant  any  substance  or  article  declared 
to  be  "money"  by  Congress.' 

12.  The  mail  service,  the  carriage  like  other 

•  Juillard  V.  Greenman,  110  U.  S.  421  (1884). 
3 


34  Essentials  of  American  Government 

monopolies  by  the  federal  Government  war- 
ranted by  the  Constitution  are  an  exercise  of 
sovereignty,  illustrated  also  by  such  acts  as  the 
purchase  of  the  Louisiana  country  in  1803,  or  of 
Florida  in  1819.^ 

13.  We  shall  see,  when  we  are  considering 
"the  citizen"  how  the  United  States  has  power 
to  reach  and,  in  a  measure,  to  control,  every 
person  residing  on  American  soil.^  "The  idea 
of  a  national  government,"  remarks  Madison, 
in  the  Federalist,  "involves  in  it  not  only  author- 
ity over  the  individual  citizens,  but  an  indefinite 
supremacy  over  all  persons  and  things,  so  far  as 
they  are  objects  of  lawful  government."^ 

14.  This  means  that  the  federal  government 
operates  its  powers  to  the  extent  of  reaching  every 
person  and  everything  within  its  jurisdiction. 
This  extent  of  operation  of  its  powers  conforms 
perfectly  with  the  language  of  the  Constitution 
that  it  is  "the  supreme  law  of  the  land." 

15.  But  in  the  exercise  of  this  sovereignty 
only  "objects  of  lawful  government"  can  be 
thus  affected.     This  seeming  limitation  brings 

'  American  Insurance  Company  v.  Canter,  1  Peters,  511  (1828). 
Decision  by  Marshall. 

=>  Ex  parte  Siebold,  100  U.  S.  371  (1879). 
3  No.  xxxix. 


The  United  States  35 

us  to  the  fundamental  question:  What  are,  or 
what  are  not  "objects  of  lawful  government"? 
No  less  an  authority  than  the  Supreme  Court  of 
the  United  States  has  answered  this  question. 
The  Government  of  the  United  States  is  one  of 
enumerated  powers.  It  can  exercise  only  those 
powers  which  are  granted  to  it  by  the  Constitu- 
tion. "But  the  question  respecting  the  extent 
of  the  powers  actually  granted  is  perpetually 
arising,  and  will  probably  continue  to  arise  as 
long  as  our  system  shall  exist."  The  conflict 
here  (if  one  arises)  is  likely  to  be  between  federal 
powers  and  State  powers, — or,  between  either 
federal  or  State  powers  (as  they  may  be  as- 
sumed) and  unlawful  procedure.  Ours  is  a 
government  of  laws.  There  are  limitations  on 
the  extent  of  federal  and  of  State  power. 

16.  These  limitations  are  set  forth  in  Declara- 
tions, or  Bills  of  Rights  found  in  every  American 
constitution  of  government.  The  first  ten 
amendments  of  the  federal  Constitution  comprise 
such  a  Declaration.  Thus,  "private  property 
shall  not  be  taken  for  public  use  without  com- 
pensation"; no  person  "shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property,  with- 


36  Essentials  of  American  Government 

out  due  process  of  law."'  Supreme  as  is  the 
Constitution  of  the  United  States,  sovereign  as 
are  its  people, — the  federal  Government  cannot 
violate  or  ignore  the  fundamental  rights  of  per- 
sons and  property  as  laid  down  by  this  amend- 
ment. All  this  seems  to  establish  the  truth  that 
there  is  a  law  higher  than  the  Constitution  of  the 
United  States  as  may  be  deduced  from  the  Con- 
stitution itself.  But  the  sovereign  power  in 
America  recognizes  the  paramount  authority  of 
this  law.  Undoubtedly  the  recognition  of  this 
fundamental  law  in  the  American  constitutions 
is,  essentially,  nothing  less  than  the  promulga- 
tion of  the  law  by  the  American  sovereign — the 
people  of  the  United  States.  "^ 

17.  The  Tenth  Amendment  to  the  Constitu- 
tion tells  the  whole  story:  "The  powers  not 
delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the 
people."  Just  what  "powers"  are  thus  "re- 
served," or  "not  delegated  to  the  United  States 
by  the  Constitution"  are  questions  "respecting 


'  Article  V. 

'  Chief-Justice  Marshall  examines  "sovereignty"  in  McCulloch  v. 
Maryland,  4  Wharton,  316  (1819). 


The  United  States  37 

the  extent  of  the  powers  actually  granted*' 
which  are  "perpetually  arising,  and  will  prob- 
ably continue  to  arise  as  long  as  our  system 
exists." 

18.  But  the  American  people  have  provided 
an  agency  for  determining  for  all  practical  pur- 
poses, the  extent  of  these  powers, — viz.,  the  Su- 
preme Court  of  the  United  States.  This  is  the 
final  authority  in  America  in  all  matters  of  law. 
Here  we  rest. 

19.  It  will  be  observed  that  the  essential 
question  is  "extent  of  power."  This  is  the  issue. 
The  Executive,  the  Legislature  has  fower  to  do 
foolish  things,  and  the  foolish  thing  may  be  sus- 
tained by  the  Supreme  Court  as  constitutional, 
because  President  or  Congress  had  the  power, 
under  the  Constitution  to  do  it.  The  motives  of 
Executive  or  Legislature  are  not  examinable  in 
any  court  of  law. 

20.  The  actual  working  of  the  Government  of 
the  United  States  now  for  nearly  a  century  and 
a  half — however  sharply  that  working  may  differ 
from  theories  about  that  Government  expressed 
at  its  inauguration  or  since,  can  be  learned, — 
if  at  all, — only  by  prolonged  study  of  numberless 
details.    Of  course,  the  meaning  of  the  Constitu- 


38  Essentials  of  American  Government 

tion  and  the  laws  is  variable  as  the  minds  of  their 
interpreters.  This  variation  is  the  open  door 
admitting  political  parties, — schools  of  political 
thought,  and  policies  of  administration.  What 
Hamilton  calls  "the  exigencies  of  the  Union" 
afford  opportunities  endless  in  number,  for  differ- 
ences of  opinion  as  to  the  origin,  the  sources,  the 
operation  and  the  authority  of  the  Government 
of  the  United  States.  Thus  far,  the  Amer- 
ican people  have  adhered  strictly  to  the  re- 
publican form  of  government.  That  is  the  form 
which  the  Government  of  the  United  States 
guarantees  to  every  State.  It  is  the  funda- 
mental, the  essential  form  of  government  in 
America,  in  war,  in  peace,  at  all  times  and  under 
all  circumstances,  the  American  people  have 
adhered  to  that  form.  What  that  form  actually 
is,  to-day,  is  republican, — that  is, — representa- 
tive. It  began  a  representative  democracy  and 
doubtless  will  so  continue  "for  ages  to  come."^ 

'The  structure,  the  "mechanics  of  government"  (to  use  Madi- 
son's phrase).  State  or  federal,  may  be  learned,  more  or  less  in- 
completely, from  books  which  enter  into  details  of  its  organization. 
Such  books  are  of  encyclopaedic  value,  and  help  make  our  govern- 
ments, federal.  State,  city,  county,  as  it  were,  visible;  objective. 
The  instructor  may  easily  supply  these  details;  the  student  may 
read  them  for  himself.  Among  the  treatises,  on  the  subject,  of 
highest  value,  is  James  T.  Young's,  The  Neiv  American  Government 
and  Its  Work,  a  textbook  furnishing  a  wealth  of  details;  so,  too. 


The  United  States  39 

Charles  A.  Beard's  American  Covcrnmenl  and  Politics,  and  his  accom- 
panying vohnne,  Eeadlngn  in  American  Government  and  Poiilias. 
Simeon  E.  Baldwin's,  The  American.  Judiciary  is  a  little  classic  on  the 
subject;  either  of  William  Macdonald's  well-known  volumes.  Docu- 
mentary Source  Book  of  American  History  1606-1898;  or  Select  Docu- 
ments Illustrative  of  the  History  of  the  United  States  1776-1861,  supply 
illustrations  of  applied  Principles  of  American  Government;  of 
course  the  Constitution  of  tiie  United  States  is  the  primary  authority 
for  any  utterance  on  American  Government.  Story's  or  Willougliby's 
Commentaries,  or  Cooley's  Principles  of  Constitutional  Law,  the 
author's  Essentials  of  America7i  Constitutional  Laic;  the  Federalist, 
and  Bryce's  American  Commonwealth  may  be  read  to  advantage. 
Of  course  the  instructor  will  be  guided  by  circumstances.  In  the 
study  of  American  Government,  Multum  not  Mulfa  is  the  test  of 
values.  Of  great  value  is  W.  B.  Munro's  The  Government  of  the 
United  States,  National,  State  and  Local. 


CHAPTER   V 

THE    CITIZEN 

1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside.  ^ 

Congress  shall  have  power  "to  establish  a  uniform 
rule  of  naturalization.^ 

The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of 
servitude.^ 

2.  Government  in  America  concerns  or  af- 
fects three  essential  elements  (as  set  forth  by  the 
Constitution  of  the  United  States):  (1)  The 
United  States.  (2)  The  States.  (3)  The  Citi- 
zen. The  comprehensive  definition  in  the  federal 
Constitution,  made  in  1870,  includes  men,  women, 
and  children. 

3.  All  citizens  have  civil  rights,  but  the  sev- 
eral States  only  confer  political  privileges.  This 
is   the    difference    between    civil    and   political 

^  Art.  XIV.  (1868).  »  Art  I.,  8:4. 

3  Art.  XV..  1  (1870).     Art.  XIX. 

40 


The  Citizen  41 

"rights,"  that  political  rights  empower  a  person 
to  participate  in  the  public  business, — that  is,  in 
shaping,  controlling  government  itself.  So  long 
as  a  person  lives  he,  or  she,  infant  or  adult,  has 
civil  rights.  A  person  by  his  or  her  voluntary 
act  may  divest  himself  or  herself  of  civil  rights. 
By  civil  rights  is  meant  the  fundamental,  so- 
called  "natural"  rights,  as  set  forth  in  Bills  of 
Rights  and  included  in  every  American  constitu- 
tion of  government.  But  political  "rights" 
(really,  privileges)  are  exclusively  in  control  of 
the  several  States.  Political  "rights"  are  pos- 
sessed by  a  person  who  complies  with  the  laws  on 
the  subject  in  force  in  the  State  in  which  he  re- 
sides. Thus  the  "right"  to  vote  is  usually  granted 
by  the  State  law  to  such  persons  as  are  resident 
citizens  of  the  age  of  twenty-one;  who  are  regis- 
tered and  who  pay  taxes;  (not  always  required; 
in  some  States,  payment  of  a  poll  tax).  While 
citizens  of  each  State  are  entitled  to  "all  privi- 
leges and  immunities  of  citizens  in  the  several 
States," — "privileges  and  immunities"  do  not 
include  "the  right  to  vote."  Because  a  person  is 
a  voter  in  one  State,  he  is  not,  when  removing 
to  another,  thereby  a  voter  in  the  State  to  which 
he  has  removed.     Before  he  can  vote  in  that 


42  Essentials  of  American  Government 

State,  he  must  comply  with  its  election  laws. 
If  he  removes  from  one  voting  precinct  to  an- 
other, in  a  State,  he  must  have  complied  with  the 
election  laws  before  he  can  vote  in  the  precinct 
into  which  he  has  removed, — even  if  his  removal 
be  no  more  than  across  the  street.  A  person  is 
not  compelled  to  vote,  neither  can  he  vote  unless 
he  complies  strictly  with  the  election  laws  of  the 
State  in  which  he  would  vote. 

4.  The  citizen  therefore  may  be  considered 
as  a  person  having  political  privileges. 

5.  The  immense  meaning  of  politics  in  Amer- 
ica,— the  very  large  privilege  of  participating  in 
the  government, — federal.  State,  local,  empha- 
sizes the  citizen  as  a  political  being.  The  right 
to  vote  and  to  hold  office  is  the  most  important 
right  of  the  American  citizen. 

6.  There  are  two  citizenships, — that  of  the 
United  States,  that  of  the  State.  Primarily  the 
idea  of  citizenship  is  of  local  residence.  Whereso- 
ever a  person  lives,  there  he  is  a  citizen, — that  is, 
he,  while  possessing  civil  rights, — is,  if  these 
rights  are  impaired,  entitled  to  legal  proceedings 
in  that  place  (i.e.,  w^ithin  the  jurisdiction  in  which 
that  place  lies).  This  practically  means  that  he 
is  entitled  to  his  legal  (civil  rights)  in  any  place 


The  Citizen  43 

over  which  the  United  States  has  jurisdiction,  or 
— if  the  place  be  within  jurisdiction  of  a  foreign 
power,  he  is  entitled  to  such  legal  rights,  and 
proceedings,  as  are  recognized  and  agreed  upon 
by  treaty  between  the  United  States  and  that 
power. 

7.  The  principle  involved  here  is  that  of  pro- 
tection. A  government  exacts  service  from  its 
citizens  or  subjects  and  protects  them.  The 
exercise  of  the  "right  to  vote"  is  a  form,  in- 
stance of  self-protection.  When  the  Fifteenth 
Amendment  was  under  discussion  in  Congress, 
its  advocates  emphasized  the  argument  that  un- 
less the  negro  could  vote,  he  could  not  protect 
himself.  Doubtless  this  idea  is  at  the  bottom  of 
the  prevalent  conviction  in  America  that  the 
ballot  is  the  chief  defense  of  the  citizen.  The 
idea  underlies  every  principle  of  representative 
government. 

8.  There  are  some  55,000,000  voters  in 
America  of  whom  about  one  million  more  than 
half  are  males.  The  majority  of  votes  cast  at 
any  election  decides  the  election  and  authorizes 
a  policy,  procedure,  or  administration;  possibly 
a  law,  or  the  repeal  of  one.  The  issues  are  num- 
berless.   However,  ''majority  rule"  is  the  domi- 


44  Essentials  of  American  Government 

nant  American  rule.    What  constitutes  a  major- 
ity is  determined  according  to  law. 

9.  The  word  "citizens"  in  America  is  often 
used  as  meaning  the  "people"  of  America. 
Strictly  speaking,  the  people  of  America  include 
all  its  inhabitants, — residents,  native-born,  natu- 
ralized, and  aliens.  "Voting  citizens"  exclude 
aliens, — the  foreigner  residing  in  America,  and 
all  persons  who  are  incapable  of  voting  because 
of  failure  or  inability  to  comply  with  the  election 
laws  of  a  State.  The  number  of  citizens  who 
actually  vote  is  usually  a  minority  of  those 
qualified  to  vote  if  they  but  take  the  trouble  to 
comply  with  the  election  laws  of  the  State  in 
which  they  reside.  Thus  it  often  happens,  in 
America,  that  a  person  is  elected  to  office,  or  a 
public  policy  is  adopted  by  a  vote  of  the  majority 
of  the  minority  of  possible  votes. 

10.  Lincoln's  opinion  on  the  admission  of 
West  Virginia  into  the  Union  expresses,  doubt- 
less, the  conviction  of  the  American  people,  in 
point : 

It  is  a  universal  practice,  in  popular  elections,  to  give  no 
legal  consideration  whatever  to  those  who  do  not  choose 
to  vote,  as  against  the  effect  of  the  votes  of  those  who  do 
choose  to  vote.    Hence,  it  is  not  the  quahfied  voters,  but 


The  Citizen  45 

the  qualified  voters  who  choose  to  vote  that  constitutes 
the  poHtical  power  of  the  State.  ^ 

The  principle  here  is  that  of  representation.  The 
majority  of  voters  who  vote  at  any  election  re- 
present all  the  people  in  the  jurisdiction  within 
which  the  election  is  held.  Therefore  the  person 
or  persons  elected,  the  policy  thus  agreed  upon 
at  the  polls,  become  the  agents  and  the  policy 
of  all  the  people  within  the  jurisdiction.  The 
essential  principle  of  "majority  rule"  is  the 
fundamental  principle  of  American  government. 
The  old  maxim  of  law  is  here  exemplified: 
"What  we  do  by  another,  we  do  ourselves."^ 

'  Works,  II.,  286  (Century  Edition),  December  31,  1862. 

'  The  law  of  citizenship  is  examined  in  Chapter  xii  of  the  author's 
Essentials  of  American  Constitutional  Law.  The  instructor  may 
profitably  utilize  the  decisions  of  the  Supreme  Court  of  the  United 
States,  definitive  of  American  citizenship  in  its  various  aspects,  e.  g.. 
Twining  v.  State  of  New  Jersey,  211  U.  S.  78  (1908);  Slaughter- 
House  Cases,  16  Wallace  35  (1872);  U.  S.  v.  Cruikshank,  92  U.  S. 
542  (1872);  Civil  Rights  Cases,  109  U.  S.  3  (1883);  Hawaee  v.  Monki- 
shi,  190  U.  S.  197  (1903);  Dorr  v.  U.  S.  195  U.  S.  138  (1904);  U.  S. 
V.  Ju  Toy,  198  U.  S.  253  (1905).  (The  above  bear  on  the  essential 
elements  of  citizenship.)  Hooe  v.  Jamieson,  166  U.  S.  395  (1897); 
The  Ohio  and  Mississippi  R.  R.  Co.  v.  Wheeler,  1  Black  286  (1861); 
St.  Louis  and  San  Francisco  R.  R.  Co.  v.  James,  161  U.  S.  545  (1896); 
(these  bear  on  cases  of  diverse  citizenship).  Paul  v.  Virginia,  8  Wal- 
lace 168  (1868);  Blake  i'.  McClung,  172  U.  S.  239  (1898);  (these 
relate  to  "the  privileges  and  immunities  of  citizens").  Lascelles  v. 
Georgia,  148  U.  S.  537  (1893)  (Extradition).  Havenstein  v.  Lyn- 
haven,  100  U.  S.  483  (1879);  (Aliens).  U.  S.  v.  Wong  Kim  Ark,  169 
U.  S.  649  (1898) ;  Downes  v.  Bidwell,  182  U.  S.  244  (1901).      (XIX  th 


46  Essentials  of  American  Government 

Amendment;  Citizenship  in  the  U.  S.)  These  cases  are  given  in 
McCIain's  A  Selection  of  Cases  on  Constitutional  Laiv.  See  also 
(Index,  same  volume),  on  "Aliens,"  "  Birth  by  Citizenship,"  "Natur- 
alization." See  also  under  "Nationality"  and  "Naturalization"  in 
A.  S.  Hershey's,  The  Essentials  of  International  Public  Law.  The 
subject  is  also  discussed  in  the  other  volumes  cited  in  the  Selected 
"Bibliography,"  in  the  present  work. 

Of  great  value  is  the  Federal  Citizenship  Textbook,  a  Course  of  In- 
strvrtion  for  Use  in  the  Public  Schools  by  the  Candidate  for  Citizenship. 
Part  III,  by  Raymond  F.  Crist,  U.  S.  Department  of  Labor,  Bureau 
of  Naturalization,  Washington,  Government  Printing  Office,  1921, 
104  pp. 


CHAPTER  VI 


CITIES 


1.  Cities  in  America  are  political  subdivisions 
of  a  State  and  therefore  possess  whatever  or- 
ganization, powers,  and  jurisdiction  the  State 
grants.  These  grants, — taking  the  form  of 
charters,  acts  of  incorporation,  laws  of  whatever 
kind, — are  strictly  construed.  No  American 
city  is  free,  sovereign,  or  independent. 

2.  A  city  is  a  part  of  a  whole, — the  State.  Free 
cities,  like  the  members  of  the  Hanseatic  League, 
or  distinct  urban  communities,  like  Carthage, 
Rome,  Athens,  or  Thebes  of  old,  are  unknown  to 
American  government.  Doubtless  civil  govern- 
ment grew  apace,  if  it  did  not  originate  in  cities. 
Our  words  "politics"  (ttoXis,  a  city),  "citizen" 
disclose  chapters  of  the  history  of  government. 
Indeed,  our  words  "civics,"  "civil,"  and  others 
on  the  same  root  {civitas,  the  state)  tell  the  same 
story.  Early  governments  were  governments  of 
city-states. 

47 


4^  Essentials  of  American  Government 

3.  In  America,  to-day,  more  than  half  the 
population  dwells  in  cities,  and  the  constant  in- 
flux from  the  country  tends  to  increase  the  urban 
proportion  of  our  people.  City  government, 
therefore,  in  America,  has  become  the  govern- 
ment under  which  the  greater  part  of  our  people 
live. 

4.  The  Constitution  of  the  United  States  was 
made  for  States, — not  for  cities,  or  territories,  or 
"outlying  possessions."  Cities  are  therefore  a 
part  of  State  government.  Territories  and  out- 
lying possessions  of  the  United  States  are  sub- 
ject to  the  exclusive  control  of  Congress.^ 

5.  Thus  New  York  City  is  governed  by  the 
people  of  the  State  of  New  York  acting  through 
the  constitution  of  that  State.  Practically,  this 
means  government  of  the  city  by  the  Legislature 
of  the  State. 

6.  Manila  is  governed  by  the  people  of  the 
United  States  acting  through  the  Constitution 
of  the  United  States.  Practically  this  means 
government  of  Manila  by  Congress. 

7.  When  the  first  State  constitutions  and  the 
Constitution  of  the  United  States  were  made,  the 
urban  population  of  the  country  was  so  small  as 

»  Art.  IV.,  Section  2.     Downes  v.  Bidwell,  182  U.  S.  244  (1901). 


Cities  49 

to  be  almost  negligible, — less  than  three  per 
cent  of  the  entire  population.  By  1890  (a 
century  later),  the  urban  population  approxi- 
mated one  fourth  of  the  population,  or  more  than 
eight  times  the  number  at  the  time  the  federal 
constitution  was  made.  Since  1890,  this  popula- 
tion has  more  than  doubled.  The  problem  of  city 
government  in  America  is  now,  and  henceforth 
will  continue  to  be,  as  very  large,  if  not  the 
largest  civil  problem  before  our  people. 

8.  The  problem,  stated  in  some  of  its  bare 
outlines  is  how  shall  the  most  complex  popula- 
tion, having  diverse  social  structure,  hetero- 
geneous interests,  unlimited  possibilities  of  all 
kinds,  extremes  of  poverty  and  wealth,  unlimited 
needs  as  to  public  health,  education,  safety, — all 
involving  taxation,  expenditures, — questions  of 
public  works, — heating,  lighting,  transportation, 
— in  brief,  the  large  problem  of  government  for 
congested  populations, — be  organized  and  ad- 
ministered? 

9.  The  very  conditions  of  city  life  test  all  the 
powers  of  government.  All  these  urban  condi- 
tions duly  considered, — the  one  question  is, 
"What  government  is  best  suited  to  the  city?" 

10.  In  seeking  an  answer  to  this  question. 


50  Essentials  of  American  Government 

the  main  end  and  purpose  of  all  government  re- 
mains :  to  establish  justice.  But  no  two  cities  are 
precisely  alike,  though  the  dominant  conditions 
of  several  cities  may  be  quite  the  same.  This 
presumption,  which  lies  at  the  bottom  of  laws 
which  classify  cities  within  a  State,  proceeds  on 
the  theory  that  cities  of  equal  population  shall  be 
governed  alike.  The  basis  of  government  here 
is  persons i  not  things;  population, — not  wealth, 
area,  race,  language  or  occupation. 

11.  In  the  present  stage  of  the  development 
of  ideas  of  government,  we  have  but  one  unit  of 
measure:  population.  Economic,  ethical,  racial 
conditions  yield  to  numbers  of  persons  as  the 
basis  for  government.  This  means  that  justice 
can  be  best  (possibly,  in  no  other  way)  estab- 
lished than  by  basing  government  on  population. 
The  theory  is  that  an  equal  population  will  have 
practical  equality  (if  not  identity)  as  to  eco- 
nomics, ethics,  manufactures,  education,  and 
other  elements  which,  in  the  aggregate,  dominate 
city  life.  In  other  words  the  only  basis  of  govern- 
ment adopted  for  cities  is  the  basis  adopted  for 
States  and  for  the  United  States:  population. 

12.  Given  this  basis,  the  question  is,  What 
population?     That  of  the  city  itself  or  some 


Cities  51 

other, — e.g.,  that  of  the  entire  State.  If  of  the 
city  itself,  and  not  of  the  State  as  a  whole,  then 
the  city  shall  have  "self-determination,"  or 
"home-rule."  This  means  that  the  people  of  the 
city  shall  in  large  measm-e  be  independent  of  the 
remaining  people  of  the  State,  particularly  in 
organizing  the  form  of  their  government.  While 
republican  {i.e.,  representative  in  form)  it  shall 
vary  from  the  exact  form  of  the  State  govern- 
ment. State  governments,  in  America,  are 
essentially  of  the  (so-called)  federal  form, — i.e., 
they  consist  of  three  departments, — the  Execu- 
tive, the  Legislature,  and  the  Judiciary.  The 
State,  the  national  executive  is  a  single  person; 
the  State,  the  national  Legislature  is  bi-cameral. 
13.  City  government  of  the  federal  type, — 
familiar  in  this  country,  provides  for  a  mayor,  a 
select  and  a  common  council  (a  little  Congress), 
and  courts  of  law.  But  is  the  general  law  of  the 
State, — which  consists  of  sparsely  settled  regions 
(rural  regions)  and  congested  populations  (cit- 
ies),— suflBcient  to  establish  justice,  the  great  end 
of  all  government.^  A  fundamental  and  very  prac- 
tical question  is  here  involved.  Shall  the  people 
of  a  State  be  governed  by  general  or  by  special 
laws?    Special  legislation  is,  generally  speaking, 


52  Essentials  of  American  Government 

class  legislation,  favoring  some  particular  inter- 
est.   It  therefore  does  not  establish  justice. 

14.  General  legislation  misses  the  needs  of 
some  communities.  Thus  the  needs  of  a  great 
city  are  different  from  those  of  a  farming  com- 
munity. This  difficulty  in  legislation  was 
thought  for  many  years  to  be  overcome  if  cities 
were  classified  according  to  population. '  But  the 
multiplication  of  classes  of  cities  amounted 
practically  to  special  legislation.  The  impossi- 
bility of  solving  the  problem  by  mere  classifica- 
tion of  cities  soon  was  disclosed, — for  so  rapid 
was  the  increase  in  number  of  cities,  and  of  their 
populations, — so  various  their  several  needs,  the 
State  Legislature  was  unable  to  meet  these  needs 
by  appropriate  legislation.  This  condition  be- 
came serious  in  States  in  which  great  cities 
sprang  up,  incident  to  manufacturing,  as  in 
New  York,  Pennsylvania,  Ohio,  Illinois,  and 
Missouri. 

15.  In  1875  Missouri  inaugurated  the  "home- 
rule  charter"  system  of  city  government,  giving 
every  city  having  a  population  over  100,000  the 
right  to  formulate,  adopt,  and  administer  its  own 

"  Exemplified  by  the  classification  of  Ohio  cities  into  two  classes 
by  the  Constitution  of  1851;— Municipal  Code  of  1852;  Act  of  1868. 


Cities  53 

charter.'  It  is  now  nearly  half  a  century  since 
this  innovation.  Upwards  of  one  hundred  and 
seventy  cities  in  more  than  a  dozen  States  are 
to-day  organized  under  some  form  of  "home- 
rule.'*  Varying  as  these  forms  do,  they  all  agree 
in  complying  with  the  principle  of  representa- 
tion fundamental  in  American  government. 

16.  The  chief  argument  in  favor  of  "home- 
rule"  for  cities  is  the  compliance  of  the  form  with 
the  principle  of  representation.  The  people  of 
the  city, — so  runs  this  argument, — know  best 
their  own  needs.  The  State  Legislature  cannot, 
or  does  not,  or  will  not  know  these  needs  so 
perfectly.  The  chief  objection  to  the  system  is 
to  its  decentralizing  tendency  and  effects, — that 
the  people  of  the  city  make  these  interests  para- 
mount to  those  of  the  State,  thus  making  the 
part  even  greater  than  the  whole.  Opponents  of 
"home-rule"  for  cities  assert  that  all  essential 
interests  of  the  city  are  essential  interests  of  the 
State,  and  therefore  should  be  considered  in  no 
wise  different  from  general  State  interests.  If 
the  claims  of  "home-rule"  (so  its  opponents  as- 
sert) are  fully  acknowledged,  then  every  com- 
munity within  the  State  will  be  an  independent 

'  See  Constitution  of  Missouri,  1875,  Art.  IX.,  Sec.  10. 


54  Essentials  of  American  Government 

community,  and  the  State  will  be  hopelessly  split 
up  into  innumerable  parts  and  factions. 

17.  In  brief,  opponents  of  the  system  see  in 
"home-rule"  for  cities  the  disintegration  of  the 
State.  The  rejoinder  for  *' home-rule"  for  cities 
is  that  the  system  cuts  down  and  even  eliminates 
gross  abuses  in  government, — especially  in  the 
matter  of  taxation;  in  the  efficiency  of  appropria- 
tions; in  public  order,  health,  elections,  schools, 
methods  of  transportation, — indeed,  in  every 
branch  and  interest  of  city  government. 

18.  The  principal  points  of  difference  of 
opinion  as  to  the  system  are: 

1 .     Taxation 

The  power  to  tax  is  the  power  to  destroy.  The 
State  should  not  delegate  this  power  to  any  of  its 
subdivisions. 

2.     Police  Power 

The  police  power  of  the  State  is  an  aspect,  an 
element  of  its  sovereignty.  The  first  care  of  a 
State  is  for  the  welfare  of  its  people:  their 
health,  safety,  and  morals.  This  police  power 
should  not  be  surrendered  to  any  subdivisions 
of  the  State. 


Cities  55 

3.     Election  Laws 

The  election  laws  of  a  State  should  be  uniform. 
No  subdivision  of  a  State  should  be  allowed  to 
make  election  laws  differing  from  those  enacted 
by  the  Legislature  for  the  people  of  the  State  as 
a  whole. 

4.     Indebtedness 

No  city  should  be  allowed  to  exceed,  in  bor- 
rowing power,  an  amount,  or  percentage  of 
valuation,  fixed  by  the  Legislature.  Otherwise 
financial  credit  will  vanish  and  bankruptcy  be 
the  fate  of  the  community. 

5.     Charities  and  Schools 

Education  and  philanthropy  are  the  care 
(function)  of  the  whole  State  and  are  never 
merely  local  interests.  Uniformity  in  education 
is  necessary,  as  it  is  just,  for  all  the  people  of  the 
State.  Indeed,  the  weight  of  argument  against 
*' home-rule"  for  cities  in  a  State  rests  on  the 
justice  and  equity  of  uniformity  for  all  com- 
munities within  the  State. 

19.  To  these  (and  other)  objections  to  the 
system  there  is  essentially  one  reply:  the  in- 


56  Essentials  of  American  Government 

adequacy  of  general  laws  (general  charters)  to 
the  special  wants  of  a  city.  The  answer  recog- 
nizes that  "home-rule"  for  a  city  makes  it  a 
political  unit  separate  from  the  State.  Yet  this 
divorce  of  State  and  municipal  politics  is  claimed 
by  defenders  of  "home-rule"  for  cities  as  a  dis- 
tinct gain  for  the  city,  in  that  its  people  have  the 
opportunity  by  its  "home-rule"  charter  to  free 
themselves  from  control  by  domination  of  a 
political  party  dominant  in  the  State,  and  thus 
to  control  their  own  urban  affairs.  This  separa- 
tion of  State  and  city  issues,  making  the  city 
independent  of  the  State,  it  is  claimed  by  sup- 
porters of  the  "home-rule"  system  operates  to 
the  advantage  of  the  people  of  the  city.  Prima- 
rily, it  concentrates  their  attention  on  their  own 
urban  interests,  and  results  in  greater  efficiency 
in  every  branch  of  municipal  government. 

20.  This  all  means, — if  it  means  anything, — 
that  "home-rule"  for  cities  works  out,  as  a  sys- 
tem, more  perfectly  than  any  other  known,  the 
fundamental  principle  of  American  government, 
— representation. 

21.  In  cities  which  have  "home-rule"  it  is 
claimed  that:  (1)  The  voters, — the  electorate, 
take  a  livelier  interest  in  all  public  questions 


Cities  57 

affecting  the  city's  welfare;  as  proved  by  the 
larger  percentage  of  persons  voting  than  in  cities 
not  havirxg  **home  rule." 

The  voters  inform  themselves  as  to  these 
questions,  whence  a  marked  discrimination  in 
choosing  public  officials. 

(2)  That  the  "best  men," — the  best  qualified 
candidates  are  chosen  to  office  irrespective  of 
party  affiliation. 

(3)  That  economy  and  efficiency  mark  every 
department  of  city  government, — notably  in 
education,  public  safety,  public  health,  parks, 
streets,  public  works  (water,  gas,  light),  urban 
traffic  and  transportation, — in  brief,  in  all  ex- 
penditures of  money.  Such  economy  and  effi- 
ciency bring  reduction  in  taxes,  and  "clean 
politics." 

22.  All  this  means  (if  true)  that  "home-rule" 
for  American  cities  is  a  more  complete  applica- 
tion of  the  representative  principle  in  govern- 
ment than  has  hitherto  been  known.  If  more 
than  one  half  the  population  of  the  United  States 
dwells  in  cities,  then  the  significance  of  "home- 
rule"  for  them  in  America  is  apparent. 

23.  Authority  to  the  people  of  a  city  to  have 
"home-rule"  comes  from  all  the  people  of  the 


58  Essentials  of  American  Government 

State  through  their  representatives,  the  State 
Legislature.  By  this  authority,  the  people  of  the 
city  at  an  election,  or  town  meeting  appoint  a 
committee  to  draw  up  a  plan  for  the  city's 
government,  usually  called  a  charter.  This 
charter  is  submitted  to  the  electors  in  the  city 
(a  referendum)  and,  if  approved  by  a  majority  of 
them,  becomes  law.  This  charter  may  have  been 
prepared  by  a  special  committee;  by  a  non- 
resident; may  be  copied  from  some  other  city. 
Whatever  the  origin,  it  becomes  the  city's 
charter  by  majority  vote  of  its  electors. 

The  charter  thus  adopted  has  for  its  primary 
purpose  the  establishing  of  justice.  This  end  is 
usually  expressed  as  the  securing  of  economy  and 
eflSciency. 

24.  To  this  end,  the  administration  of  city 
affairs  is  committed  to  individuals  who  by  the 
charter  are  responsible  for  results  in  their  respec- 
tive departments.  The  organization  and  pro- 
cedure is  like  that  of  a  business  concern.  The 
city  is  considered  as  a  business  to  be  conducted 
by  experts.  The  commissioners  elected  on  a 
non-partisan  ballot  may  divide  the  work  among 
themselves,  or  employ  a  general  manager  who 
shall  be  responsible  for  economy  and  efficiency 


Cities  59 

in  every  department.  The  manager  may  be  paid 
a  salary.  Usually  the  public  business  is  divided 
among  the  commissioners, — thus  one  commis- 
sioner has  charge  of  Public  Safety;  another  of 
Streets  and  Highways;  another  of  Public  Health. 
The  schools  are  usually  left  in  charge  of  a  School 
Board  as  organized  and  empowered  by  the  school 
laws  of  the  State.  As  in  the  government  of 
American  cities,  there  has  been  waste  and  ineffi- 
ciency in  departments  whose  work  involves  large 
contracts, — it  is  particularly  in  these  depart- 
ments that  "home-rule"  and  "charters"  seek 
to  effect  results. 

25.  Whatever  form  of  commission  govern- 
ment be  adopted  by  a  city, — that  form  is  an 
application  of  the  principle  of  representation. 
The  primary  authority  is  the  people  of  the  State. 
This  means  that  a  commission  government, 
whatever  its  form,  is  a  form  of  government 
authorized  by  the  sovereign  power  in  the  State. 
The  authority  thus  authorized  is  delegated  by  that 
sovereign.  Like  all  grants  or  charters  author- 
ized by  a  Legislature  (or,  indeed  by  any  power, — 
as  the  Executive,  or  the  Judiciary)  the  city 
charter  is  strictly  construed.  In  case  of  litiga- 
tion arising  under  it,  the  court  or  courts  of  law 


6o  Essentials  of  American  Government 

having  jurisdiction  interpret  its  meaning.  The 
principle  here  is  set  forth  by  the  Supreme  Court 
of  the  United  States:  "It  is  emphatically  the 
province  and  duty  of  the  judicial  department  to 
say  what  the  law  is.'"  The  charter,  or  com- 
mission form  of  government  is  the  law  of  the 
city  having  "home-rule." 

26.  Therefore,  whether  the  law  of  the  city 
be  its  special  charter,  or  the  general  municipal 
law  of  the  State,  the  people  of  the  city  live  under 
the  "republican  (representative)  form"  which 
characterizes  American  government,  State  and 
federal.^ 

I  Marshall  in  Marbury  v.  Madison,  1  Cranch  137  (1803). 

"  The  literature  on  the  government  of  cities  is  very  extensive  and 
detailed.  W.  B.  Munro's  The  Government  of  American  Cities  describes 
"the  machinery  of  that  government."  Quite  all  available  material 
worth  citing  is  utilized,  and  cited.  Instructors  and  students  will  find 
in  this  work  adequate  discussion  of  all  the  essential  elements  of  city 
government.  For  comparative  study,  consult  the  same  author's 
The  Government  of  European  Cities.  See  also  H.  Deming's  Govern- 
ment of  American  Cities. 


CHAPTER  VII 

THE    SUPREME   LAW 

(Wrilten  and  Unwrilten) 

1.  The  supreme  law  of  the  land  is  the  Con- 
stitution of  the  United  States  and  all  acts  of 
Congress  in  force,  made  by  its  authority. '  No 
other  people  has  a  like  law.  Ours  is  written. 
There  is  also  an  unwritten  supreme  law,  con- 
sisting of  customary  law,  and  (for  lack  or  a 
better  term)  public  opinion. 

2.  The  Supreme  Law  has  for  its  primary  pur- 
pose the  establishing  of  justice.^  This  estab- 
lished, all  the  remaining  purposes  of  government 
follow:  to  insure  domestic  tranquillity;  to  pro- 
vide for  the  common  defense;  to  promote  the 
general  welfare,  and  to  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity.  ^  No 
similar  statement  of  the  purpose  of  government 
can  be  found  before  the  Constitution  of  the 
United  States  was  made.    This  Constitution  was 

»  Article  VI.,  1.  '  Preamble.  J  Id. 

6i 


62  Essentials  of  American  Government 

ordained  and  established  by  the  people  of  the 
United  States. 

3.  Probably  no  words  are  more  commonly 
used,  in  America,  whenever  its  laws  or  its  govern- 
ment is  considered,  than  "constitution"  and 
"constitutional."  No  other  people  uses  these 
words  in  like  manner. 

4.  The  Constitution  is  a  short  document 
(less  than  6500  words)  ^  and  has  now,  for  more 
than  a  century,  been  a  model  whenever  a  people 
have  made  any  modification  of  their  old  govern- 
ment or  organized  a  new  one. 

5.  The  Constitution  is  a  delegation  of  powers. 
The  delegating  authority  is  the  people  of  the 
United  States.^  The  people  by  the  Constitution 
not  only  delegate  powers  but  also  determine  by 
what  method  or  procedure  these  delegated  pow- 
ers shall  be  exercised. 

6.  The  Supreme  Law  thus  expresses  the  will 
of  the  people  as  to  the  powers  which  shall  or  may 
be  exercised  and  also  in  what  manner  or  method 
their  agents  shall  exercise  them.  Thus  the 
Constitution  consists  of  statements  of  power 
delegated,  and  of  parliamentary  procedure. 

'  The  last  constitution  of  Louisiana,  the  ninth  (1921),  has  more 
than  50,000  words.  "  Preamble. 


The  Supreme  Law  63 

7.  Government  is  control.  Control  is  reason- 
able,— that  is,  according  to  law.  What  is  law? 
It  is  not  self-executory.  Therefore  the  idea  or 
concept  of  government  involves  the  making  of 
the  law;  the  interpretation  of  the  law,  and  its 
execution.     It  also  involves  its  administration. 

Our  Supreme  Law  is,  historically,  a  piece  of 
eighteenth  century  work,  modified  and  amended 
later,  to  meet  the  exigencies  of  the  American 
people. ' 

8.  In  so  far  as  legislative  powers  have  been 
granted  by  the  people  of  the  United  States, 
they  are  vested  in  a  Congress  which  consists  of  a 
Senate  and  a  House  of  Representatives.  == 

9.  The  Constitution  prescribes  the  composi- 
tion of  the  Senate  and  of  the  House:  how  mem- 
bers of  each  shall  be  chosen;  their  respective 
qualifications  as  to  age  and  residence;  the  term 
of  oflSce,  and  the  method  of  removal  from  oflSce. 
Also  distinctive  powers  of  each  branch  of  Con- 
gress. ^  It  prescribes  the  organization  of  each 
branch  and  the  procedure  in  legislation. 

10.  Legislation  is  the  act  of  the  Congress, — 


*  See  discussion  of  this  point  in  the  author's  Constitutional  History 
of  the  United  States. 

'  Art.  I.,  1.  3  Art.  I. 


64  Essentials  of  American  Government 

not  of  one  branch  of  it, — unless  so  specified, — as 
in  the  making  of  treaties,'  in  which  the  Senate 
alone  participates. 

11.  The  powers  of  the  Congress  are  stated, 
somewhat  specifically,  but  with  the  somewhat 
sweeping  grant  of  power  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  its 
powers  into  execution,  and  all  other  powers 
vested  by  the  Constitution  in  the  Government 
of  the  United  States  or  any  department  of  this 
government. " 

12.  This  seemingly  sweeping  delegation  of 
powers  to  Congress  by  the  people  is  limited  by 
explicit  words  at  the  opening  of  the  legislative 
article  which  says,  "All  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress,"  and 
again,  in  the  Tenth  Amendment,  "The  powers 
not  delegated  to  the  United  States  by  the  Con- 
stitution nor  prohibited  by  it  to  the  States  are 
reserved  to  the  States  respectively  or  to  the 
people."  The  words  "herein  granted"  and  "are 
reserved"  are  words  of  limitation.  This  means 
that  the  Congress  is  not  sovereign. 

5.     Having  authorized  the  Congress  to  make 

'  It  may  be  questioned  whether  "treaty-making"  is  "legislation." 
•Art.  I.,  8:18. 


The  Supreme  Law  65 

all  laws  necessary  and  proper  to  carry  into  exe- 
cution the  powers  vested  in  that  body,  the 
people  delegated  executive  power,  vesting  it  in  a 
President  of  the  United  States,  specifying  the 
method  of  his  election;  his  term  of  office;  some 
of  his  powers;  his  qualifications  as  to  age  and 
residence,  requiring  him,  under  oath  or  affirma- 
tion solemnly  to  promise  faithfully  to  execute 
the  office  to  which  he  is  chosen.  The  people 
further  prescribed  the  procedure  of  impeach- 
ment of  the  President. ' 

14.  The  supreme  duty  of  the  President  is  to 
execute  the  office  he  holds,  which  duty  consists 
in  his  preserving,  protecting,  and  defending,  to 
the  best  of  his  ability,  the  Constitution  of  the 
United  States. 

15.  To  the  end  that  justice  be  established, 
the  exact  meaning  of  laws  must  be  known. 
This  meaning  affects  the  people,  collectively 
and  individually.  They  therefore  delegated 
judicial  power,  vesting  it  ''in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.""  No 
authority  has  been  given  by  the  people  of  the 
United  States  by  which  judicial  power  is  vested 

'  Art.  II.  '  Art.  III. 

s 


66  Essentials  of  American  Government 

in  courts  of  a  State  save  and  except  that  the 
judges  in  every  State  shall  be  bound  by  the  Con- 
stitution of  the  United  States,  anything  in  the 
constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding:  a  provision  which  vests 
State  judges  with  power  to  interpret  the  Supreme 
Law  of  the  land. 

16.  In  vesting  the  judicial  power  of  the 
United  States  in  one  Supreme  Court  and  in 
inferior  courts  that  vesting  is  not  elaborated  into 
details.  The  nature  of  cases  or  "causes"  (to  use 
a  legal  term)  and  the  parties  to  them  are  de- 
scribed and  a  distinction  made  between  the 
original  and  the  appellate  jurisdiction  of  the 
Supreme  Court.  The  place  of  criminal  trials, 
their  procedure,  and  provision  for  change  of 
venue  are  provided  for.  An  amendment  forbids 
the  judicial  power  of  the  United  States  to  extend 
to  any  suit  in  law  or  equity  commenced  or 
prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  sub- 
jects of  any  foreign  State.  This  amendment 
adopted  nine  years  after  the  inauguration  of  the 
constitution  was  made  in  recognition  of  the 
sovereignty  of  a  State. 

17.  Chief -Justice  Marshall  declared  the  prin- 


The  Supreme  Law  67 

ciple  that  "it  is  emphatically  the  province  and 
duty  of  the  judicial  department  to  say  what  the 
law  is."  This  principle  applies  to  any  court  of 
law.     And  he  says  further: 

If  a  law  be  in  opposition  to  the  Constitution;  if  both  the 
law  and  the  Constitution  apply  to  a  particular  case,  so 
that  the  court  must  either  decide  the  case  conformably 
to  the  law  disregarding  the  Constitution,  or  conformably 
to  the  Constitution,  disregarding  the  law,  the  court  must 
determine  which  of  these  conflicting  rules  governs  the 
case.    This  is  of  the  very  essence  of  judicial  duty.' 

18.  The  Constitution  is  ordained  and  estab- 
lished by  the  people  of  the  United  States  as  "the 
supreme  law  of  the  land."  The  conclusion  is 
obvious :  every  law  made  in  America  in  harmony 
with  the  Constitution  stands;  any  other  legis- 
lation falls. 

19.  But  the  Supreme  Law  of  the  land  is  con- 
cerned with  other  interests  than  the  congres- 
sional, the  presidential,  and  the  judicial.  Or, 
doubtless  the  truth  may  be  stated  in  other  words, 
as  that  the  Constitution  concerns  the  United 
States,  the  States  severally,  and  the  citizen.  The 
people  of  the  United  States,  modeling  their  Con- 
stitution on  those  of  the  existing  States,""  set 

'  Marbury  v.  Madison,  1  Cranch  137  (1803). 

'  Also  utilizing  ideas  (provisions)  in  the  Articles  of  Confederation, 


68  Essentials  of  American  Government 

forth  the  relations  of  the  States  to  the  United 
States;  the  rights,  privileges,  and  immunities  of 
citizens,  and  the  coordination  of  the  federal, 
Legislative,  Executive,  and  Judiciary.  An  ex- 
amination of  the  Constitution  reveals  in  every 
article  this  fine  coordination  of  parts, —  this 
unity  in  government.  By  this  Supreme  Law 
the  people  of  the  United  States  ordained  and 
established  a  national  act, — providing  for  "an 
indestructible  Union  of  indestructible  States.'" 


in  early  Charters  and  in  English  laws  and  judicial  proceedings.  See 
the  Chapter  on  "The  Sources  and  Authorship  of  the  Constitution," 
in  the  author's  Constitutional  History  of  the  United  States. 

»  The  Constitution  is  the  subject  of  many  histories,  treatises, 
commentaries,  and  judicial  decisions. 

George  Bancroft,  History  of  the  Formation  of  the  Constitution  of  the 
United  States  of  America.     2  vols. 

George  Ticknor  Curtis,  Constitutional  History  of  the  United  States. 

2  vols. 

Francis  N.   Thorpe,   Constitutional  History  of  the   United  States. 

3  vols. 

Joseph  Story,  Commentaries  on  the  Constitution  of  the  United  States. 
2  vols. 

W.  W.  Willoughby,  The  Constitutional  Law  of  the  United  States. 
2  vols. 

Thomas  M.  Cooley,  Principles  of  Constitutional  Law. 

Cooley,  Constitutional  Limitations. 

Francis  N.  Thorpe,  Essentials  of  American  Constitutional  Law. 

Hamilton,  Madison,  Jay,  the  Federalist  (Ford,  or  Lodge  Edition). 

James  Bryce,  The  American  Commonwealth.     2  vols. 

Bibliography  of  the  Constitution,  by  Paul  Leicester  Ford. 

Facsimile  of  the  Constitution  in  H.  L.  Carson's  History  of  the  Cele- 
bration of  the  One  Hundredth  Anniversary  of  the  Promulgation  of  the 
Constitution  of  the  United  States.    Vol.  L 


The  Supreme  Law  69 

Decisions  of  the  American  Courts  on  the  meaning  of  the  Constitu- 
tion arc  the  decisions  in  cases  involving  the  Constitution  an  Act  of 
Congress,  or  a  treaty  of  the  United  States.  No  entire  collection  of 
such  decisions  exists.  See  J.  P.  Cotton's  (Editor)  Cona'itutional 
Decisions  of  John  Marshall,  2  vols.,  and  the  Reports  of  the  Supreme 
Court  of  the  United  States  (later  than  Marshall's  decisions).  Recent 
decisions  of  this  Court,  in  cases  involving  the  Constitution  are  dis- 
cussed by  T.  R.  Powell,  in  The  American  Political  Science  Review. 


CHAPTER  VIII 

THE   LEGISLATIVE 

(State  and  Federal) 

1.  The  American  people  have  vested  the 
power  to  make  their  laws  in  the  Congress  and  in 
the  State  Legislatures  of  which  at  present  there 
are  forty-eight.  These  forty-nine  Legislatures 
are  agents  of  the  people:  the  Congress,  of  all  the 
people  of  the  United  States;  the  State  Legisla- 
tures, of  the  people  subdivided  into  States.  All 
these  Legislatures  have  much  in  common.  Each 
consists  of  two  branches,  or  Houses, — an  Upper 
and  a  Lower, — a  Senate  and  a  House  of  Repre- 
sentatives,— the  Senate,  the  less  numerous  body. 
The  House,  or  lower  branch  consists  of  represen- 
tatives of  the  people  elected  in  small  districts; 
the  Senate,  of  representatives  elected  in  larger; 
in  the  case  of  the  Congress, — these  larger  dis- 
tricts are  States;  in  the  case  of  the  State  Legis- 
latures, these  larger  districts  are  of  one  or  more 
counties. 

70 


The  Legislative  71 

2.  Thus  for  the  election  of  members  of  State 
Legislatures  and  that  of  the  lower  branch  of 
Congress,  the  country  is  divided  into  districts, — 
as  (in  a  State),  Senatorial  Districts,  Assembly 
(i.  e.,  H.  R.)  Districts,  Congressional  Districts. 
State  Districts  (Senatorial  and  Assembly)  are 
defined  by  the  State  constitution,  or  by  act  of 
the  State  Legislature, — usually  by  the  latter, — as 
representative  (Senators,  Assemblymen)  are  ap- 
portioned to  population,  and  this  changes.  De- 
spite possible  changes, — which  in  theory  at  least 
may  best  be  considered  from  time  to  time  by  the 
Legislature  itself,  rather  than  be  ignored  as  by 
an  inflexible  constitution,  the  supreme  State 
law, — (the  State  constitution)  may  provide  (as 
does  Mississippi  by  its  constitution  of  1890) 
that  the  number  of  Senators  and  that  of  repre- 
sentatives shall  be  fixed, — that  certain  counties, 
(naming  them)  shall  elect  a  number  of  Senators 
and  Representatives;  that  the  apportionment 
(districting  of  the  State)  shall  be  made  by  the 
Legislature  every  ten  years, — that  new  coun- 
ties may  be  created,  but  that  the  State  shall  be 
divided  into  areas,  permanently  and  within  each 
area  the  number  of  Senators  and  of  Representa- 
tives shall  be  fixed. 


72  Essentials  of  American  Government 

3.  Mississippi  is  thus  divided  into  three  parts, 
— the  number  of  its  Representatives  never  to  be  less 
than  one  hundred  nor  more  than  one  hundred  and 
thirty-three;  that  of  its  Senators,  never  less  than 
thirty  nor  more  than  forty -five.  The  people  of  the 
State  of  New  York,  by  their  constitution  of  1894 
vest  their  legislative  power  in  a  Senate  and  Assem- 
bly;  the  Senate  consisting  of  fifty  Senators, — the 
Assembly  of  one  hundred  and  fifty  Representa- 
tives. The  constitution  districts  the  State  for 
both  Senate  and  Assembly.  Provision  is  made 
for  additional  Senators.  But  on  and  after  1895, 
decennially,  the  Legislature  districts  the  State. 
Theoretically,'  the  number  of  senatorial  dis- 
tricts is  obtained  by  dividing  the  whole  number 
of  inhabitants  of  the  State,  excluding  aliens,  by 
fifty;  the  number  of  Assembly  districts,  by  divid- 
ing that  number  by  150;  but  county  and  town 
(i.e.,  township)  lines  are  to  be  respected;  nor  are 
city  blocks  to  be  divided. 

4.  The  problem  of  representation  is  very 
different  in  a  State  like  Mississippi,  the  majority 
of  whose  population  is  rural,  from  that  in  a  State 
like  New  York,  the  majority  of  whose  population 

*  Provision  is  made  for  creation  of  new  counties;  for  additional 
Senators  in  special  cases.    See  Art.  III.,  4. 


The  Legislative  73 

is  urban.  In  New  York  nearly  one  half  the  popu- 
lation resides  in  one  city,  New  York.  Shall  the 
city  govern  the  State,  or  the  State,  the  city? 

5.  The  i^roblem  of  districting  a  State  for 
Congressmen,  or  State  Senators  and  Representa- 
tives is  always  difficult  and  (it  may  be  said)  has 
never  been  perfectly  solved.  Districting  is  never 
more  than  an  approximation  to  a  solution  of  the 
problem.  When  the  time  for  legislative  district- 
ing comes,  the  political  party  controlling  the  vote 
of  the  Legislature  may  and  often  does,  district 
the  State  in  its  own  interest,'  so  apportioning 
representation  that  the  electors  will  return  re- 
presentatives of  their  own  party, — even  though 
in  the  aggregate,  an  honest  vote  would  return 
persons  of  another  party.  This  kind  of  district- 
ing,— known  in  America  as  "Gerrymandering," 
— the  people  of  the  State  seek  to  prevent  by  pro- 
visions in  its  constitution  prescribing  that  elec- 
tion districts  shall  consist  of  "compact  and 
contiguous  territory," — that  county  and  township 
boundary  lines  shall  be  respected,  and  that  (as  is 
the  principle  in  Mississippi)  specified  subdivi- 
sions, or  areas,  of  the  State,  shall  never  have  more 
or  less  than  fixed  numbers  of  Representatives. 

*  As  in  Wisconsin,  1891. 


74  Essentials  of  American  Government 

6.  In  States  having  large  cities, — New  York, 
Illinois,  Pennsylvania,  Ohio,  Missouri,  and 
others, — the  people  of  the  State,  by  its  constitu- 
tion, attempt  to  prevent  domination  by  cities 
by  so  apportioning  representation. 

7.  It  will  be  observed,  here,  that  the  funda- 
mental principle  of  American  government  is 
involved.  Ours  is  a  representative  democracy, — 
a  republican  form  of  government, — guaranteed 
by  the  United  States  to  each  State,  and  ever 
sought  by  the  people  of  each  State.  Primarily  it 
is  thus  sought  in  the  districting  of  the  State  for 
legislative  purposes.' 

8.  The  equity  of  apportionment  is  supposed 
to  be  realized  when  equal  numbers  of  people  are 
thus  grouped.  In  actual  government  such  an 
apportionment  is  never  realized.  For  instance, 
each  State  has  equal  suffrage  (representa- 
tion) in  the  Senate  of  the  United  States, — an 
equality    of    public    corporations;    pares    inter 

"^  The  plan  of  districting  a  State  is  always  set  forth  by  its  constitu- 
tion; special  study  may  be  made  of  the  State  constitution  of  the 
State  in  which  the  student  resides.  Consult,  American  Charters, 
Constitutions  and  Organic  Laws  in  which  all  State  constitutions  down 
to  1909  are  given.  "The  equal  vote  allowed  each  State  is  at  once  a 
constitutional  recognition  of  the  portion  of  sovereignty  remaining  in 
the  individual  States,  and  an  instrument  for  preserving  that  residuary 
sovereignty."  The  Federalist,  No.  LXII.  (Hamilton  or  Madison; 
Lodge  Edition). 


The  Legislative  75 

pares,^ — not  of  population,  areas,  wealth,  indus- 
try, or  natural  resources. 

9.  In  States  in  which  each  county  is  a  sena- 
torial district,  there  is,  in  many  respects,  a 
similarity  to  the  representation  of  a  State  in  the 
Congress, — as  for  many  purposes,  a  county  is  a 
public  corporation,  and  the  counties  of  a  State 
are  pares  inter  pares.  So  too,  one  Assembly 
District  equals  another,  each  having  one  vote  in 
the  Legislature,  but  an  Assembly  District  may  or 
may  not  be  a  public  corporation;  and  rarely,  if 
ever,  are  the  wealth,  resources,  industry,  natural 
resources  of  two  Assembly  Districts  equal. 

10.  The  basis  of  representation,  in  American 
government,  is  persons.  Yet,  in  the  administra- 
tion of  government,  we  shall  see,  if  we  consider 
taxation  and  commerce,  the  burden  of  sup- 
port, while  falling  primarily  on  persons  (as 
in  time  of  war),  falls  on  wealth,  industry,  and 
resources. 

11.  Apparently,  then,  representation  appor- 
tioned to  population  is  considered  as  the  most 
equitable  basis  of  government,  irrespective  of 
wealth,  industries,  natural  resources,  land  areas, 
or  other  elements. 

'  One  equal  to  another;  literally,  "equals  among  equals." 


76  Essentials  of  American  Government 

Persons  are  the  basis  of  American  government. 
Legislatures  represent  persons,   not  things.' 

12.  Members  of  the  Legislature  are  chosen  as 
agents  of  the  people  to  make  laws.  Hence  ac- 
tivities foreign  to  the  duty  of  lawmaker  are 
forbidden  him.  He  is  a  lawmaker  only  while 
serving  his  term.  Hence  the  limitation  expires 
when  he  ceases  to  be  a  lawmaker.  He  so  ceases 
by  expiration  of  his  term;  by  resignation;  by 
expulsion  from  Senate  or  House  by  its  action; 
(and  usually)  by  removal  from  the  District  in 
which  he  was  elected, — thereby  ceasing  to  be  its 
representative. 

13.  State  constitutions  and  laws  provide 
against  a  person's  holding  more  than  one  office 
at  a  time,  usually  by  declaring  what  offices  are 
incompatible.  The  inhibition  is  not  because  a 
person  may  not  at  the  same  time  represent  the 
people  in  several  functions; — say  legislative, 
judicial,  and  administrative,  but  that  he  cannot 
so  represent  them  without  confusing  one  func- 
tion with  another, — or  neglecting  one  to  the 
neglect  of  the  people's  interests.     The  principle 

'  This  fundamental  distinguishes  the  growth  of  government  and 
ideas  about  government  in  all  ages.  Aristotle's,  "  Man  by  nature 
is  a  political  being,"  may  be  compared  with  Jefferson's,  "All  men  are 
created  equal,"  and  Louis  XIV's,  "I  am  the  State." 


The  Legislative  77 

here  involved  is  set  forth  in  the  Constitution  of 
Massachusetts : 

In  the  government  of  this  Commonwealth,  the  legisla- 
tive department  shall  never  exercise  the  executive  and 
judicial  powers,  or  either  of  them;  the  executive  shall 
never  exercise  the  legislative  and  judicial  powers,  or 
either  of  them;  the  judicial  shall  never  exercise  the  legis- 
lative and  executive  powers,  or  either  of  them :  to  the  end 
it  may  be  a  government  of  laws  and  not  of  men.* 

14.  In  the  first  State  governments,  prior  to 
the  making  of  the  national  Constitution  (1787), 
the  legislatures  v^ere  not  limited.  Limitations 
were  placed  on  governors.  The  people  delegated 
to  their  agents  in  State  Legislatures  power  to 
make  laws.  This  delegated  power  was  abused. 
After  half  a  century  of  experience  in  government, 
the  people  began  curtailing  the  power  of  their 
State  legislators  by  forbidding  special  legislation. 
The  principle  sought  to  be  applied  was  that  of 
general, — that  is,  equitable  legislation.  All  laws 
made  by  State  legislators  should  be  of  general 
application  throughout  the  State,  affecting  all 
its  people  alike.  The  purpose  of  a  law  should 
be  clearly  stated  in  its  title.^ 

'  1780,  Pr.  I.,  Art  I.,  XXX. 

'  An  illustration:  in  1808,  Aaron  Burr,  and  others,  secured  passage 
of  a  law  authorizing  a  company  in  New  York  City  to  establish  water- 
works, "and  for  other  purposes."     The  company  organized  a  bank. 


78  Essentials  of  American  Government 

15.  Turning  to  the  State  constitutions  in 
force  to-day,  elaborate  and  specific  provisions 
will  be  found  forbidding  special  legislation.  This 
does  not  signify  that  special  acts  should  not  be 
performed, — e.g.,  changing  the  name  of  a  street, 
— but  that,  in  the  opinion  of  the  people,  that 
kind  of  an  act  should  not  be  done  by  the  Legisla- 
ture. It  is  quite  possible  that  a  State  Legisla- 
ture has  power  to  enact  a  law  providing  that  all 
streets  in  the  State  running  north  and  south 
shall  be  numbered,  but  the  Legislature  of  Penn- 
sylvania is  forbidden  by  its  constitution  to 
regulate  by  "any  local  or  special  law"  "the 
affairs  of  counties,  cities,  townships,  wards, 
boroughs  or  school  districts."^ 

16.  The  obvious  reason  for  prohibiting  spe- 
cial legislation  is  that  the  result  desired, — if  de- 
sired at  all, — may  best  be  secured  through  some 
other  agency  than  the  Legislature.  It  means 
that  the  local  government  can  best  attend  to 
strictly  local  affairs,  and  that  when  a  Legislature 
meddles  with  such  affairs,  it  discriminates, — and 
discrimination  in  legislation,  is,  in  theory  at  least, 
always  inequitable.     The  principle  here  is:  "the 

'  1873,  Art.  III.,  Sec.  7.  Similar  provisions  in  other  State  con- 
stitutions. 


The  Legislative  79 

whole  shall  legislate  for  the  whole";  or,  to  use 
Chief -Justice  Marshall's  repeated  truism, — "the 
whole  is  greater  than  the  part.'" 

17.  Another  illustration  of  forbidden  special 
legislation  is  as  to  the  granting  of  divorces.  The 
evil  of  such  legislative  grants  becomes  intoler- 
able. The  granting  of  divorces  rests  justly 
with  courts  of  law  which  (in  the  language  of 
Webster)  "hear  before  they  condemn;  proceed 
upon  inquiry,  and  render  judgment  only  after 
trial."^ 

18.  The  long,  and  increasing  list  of  subjects 
concerning  which  State  Legislatures  are  for- 
bidden to  pass  laws  marks  the  growth  of  strictly 
local  government,  and  the  increasing  knowledge 
among  the  people  of  the  best  method,  or  agency, 
by  which,  or  through  which  to  establish  justice. 
A  court  of  law,  not  a  legislature,  is  an  agency  best 
representative  of  the  will  of  the  people  to  estab- 
lish justice  in  divorce  cases.  This  does  not  mean 
that  a  court  of  law  always  equals  the  will  of  the 
people.    Representation  is  always  an  approxima- 

I  This  axiom  Marshall  makes  fundamental  in  his  constitutional 
decisions.  It  is  brought  out  repeatedly  in  Beveridge's  Life  of  Mar- 
shall. See  also  the  author's  "Hamilton's  Ideas  in  Marshall's  Deci- 
sions," Boston  University  Law  Review,  April,  1921. 

» In  the  Dartmouth  College  Case,  1819. 


8o  Essentials  of  American  Government 

tion.    The  agent  is  not  the  principal,  though  he 
may,  possibly,  fully  represent  his  principal. 

19.  American  government,  in  its  every  as- 
pect, is  a  device  designed  to  establish  justice. 
Every  human  institution  is  imperfect.  Does  the 
republican  form  of  government  more  completely 
establish  justice  than  any  other  form?  This 
question  brings  into  comparison  all  forms  of 
government  among  men.  It  will  be  observed 
that  the  people  of  the  United  States, — and  the 
people  of  the  several  States  are  included, — or- 
dained and  established  "a  more  perfect"  not  a 
perfect,  or  most  perfect  Union.  The  attempt,  the 
fact,  is  significant. 

20.  In  vesting  the  law-making  power  in  a 
legislature,  the  people,  whether  of  the  United 
States,  or  of  a  State,  provide  for  the  election  of 
the  lawmaker.  The  responsibility  rests  prima- 
rily with  the  people  who  elect.  To  what  extent 
the  lawmaker  must  comply  with  the  ideas  of  the 
people  who  elect  him  is  by  no  means  agreed 
upon.^  Shall  a  member  of  Congress,  or  of  the 
State  Legislature  resign,  if  he  cannot  support,  in 


'  Thomas  H.  Benton,  as  an  anti-slavery  man,  did  not  represent  the 
ideas  of  his  constituents  of  Missouri  in  1850;  nor  John  B.  Henderson, 
1867-69,  in  his  introduction  and  defense  of  the  Fifteenth  Amendment. 


The  Legislative  8i 

legislation,  the  ideas  of  the  people  (State  or  Dis- 
trict) who  elected  him?  Shall  the  judge  on  the 
bench  decide  according  to  popular  ideas  of  the 
issue  before  him,  or  is  he  to  decide  as  an  expert, 
elected  by  the  people  as  a  person  whose  judgment 
shall  be  accepted  as  authoritative? 

21.     It  is  a  remark  of  Webster's  that 

the  true  principle  of  a  free  and  popular  government  would 
seem  to  be,  so  as  to  construct  it  as  to  give  to  all,  or  at 
least  to  a  very  great  majority,  an  interest  in  its  preserva- 
tion; to  found  it,  as  other  things  are  founded,  on  men's 
interests.* 

Another  remark  of  Webster's  is  that,  **the  people 
must  be  protected  against  themselves."  This 
raises  a  primary  question  whether  the  ideas  of 
the  people  may  ever  be  wrong.  Or,  expressed  in 
another  form,  Do  the  people,  when  electing  their 
agent,  be  that  person  lawmaker,  executive,  judge 
or  ministerial  agent  (an  administrative  official  by 
direct  or  indirect  election),  empower  that  agent 
to  act  for  them  as  he  judges  best,  thus,  as  it 
were,  making  him,  during  his  official  life,  a 
quasi-sovereign,  standing,  as  it  were,  *'in  their 
shoes"? 

»  Remarks  in  the  Massachusetts  Convention  of  1820-21,  Journal, 
311    (December    15,    1820).     The   same   thought   is   expressed   by 
Hamilton,  in  the  Federalist.  No.  XVI.  (Lodge  Edition,  95.) 
6 


82  Essentials  of  American  Government 

22.  The  question  is  debatable/  It  reduces 
itself  to  this :  Shall  the  dominant  opinion  of  the 
people  at  any  time  regulate  and  control  the 
thought  and  action  of  the  agents  of  the  people, — 
members  of  the  Congress  and  of  the  State  Legis- 
latures; the  President;  governors;  judges,  State 
and  federal, — and  administrative  officials?  If 
not, — when  shall  public  opinion  (national  or 
State,  or  District)  be  ignored  by  the  agent  of  the 
people? 

23.  Legislation,  whether  by  the  Congress,  or 
by  a  State  Legislature,  is  supposed  to  be  required 
by  the  exigencies  of  the  nation  or  of  the  State. 
All  legislation  in  America  is  made  by  the  ma- 
jority in  the  legislature,  and  that  majority 
usually  represents  the  will  of  a  political  party. 
The  people  elect  their  agent  by  majority  vote. 
Usually  he  is  a  partisan.  Practical  application 
of  the  principle  of  representation  means  therefore 
supremacy  of  a  political  party.  Non-partisan 
legislation  is, — at  least  in  America, — ideal  legis- 
lation. It  is  sometimes  enacted  even  when  a 
political  party  is  dominant  in  a  legislature. 

'  This  question  involves  that  of  the  initiative,  the  referendum,  and 
the  recall.  On  this  subject  consult  Beard  and  Schultz,  Docvments  on 
the  State-Wide  Initiative,  Referendum,  and  Recall;  also  Barnett,  The 
Operation  of  the  Initiative,  Referendum  and  Recall  in  Oregon. 


The  Legislative  83 

14.  But  what  of  the  defeated  minority? 
Should  it  be  officially  represented?  The  prin- 
ciple here  involved  is  thus  discussed  in  the 
Federalist: 

It  is  of  great  importance  in  a  republic  not  only  to 
guard  the  society  against  the  oppression  of  its  rulers,  but 
to  guard  one  part  of  the  society  against  the  injustice  of 
the  other  part.  Different  interests  necessarily  exist  in 
different  classes  of  citizens.  If  a  majority  be  united  by  a 
common  interest,  the  rights  of  the  minority  will  be  inse- 
cure. There  are  but  two  methods  of  providing  against 
this  evil:  the  one  by  creating  a  will  in  the  community 
independent  of  the  majority — that  is  of  the  society 
itself;  the  other,  by  comprehending  in  the  society  so 
many  separate  descriptions  of  citizens  as  will  render  an 
unjust  combination  of  a  majority  of  the  whole  very  im- 
probable, if  not  impracticable.  The  first  method  prevails 
in  all  governments  possessing  an  hereditary  or  self- 
appointed  authority.  This,  at  best,  is  but  a  precarious 
security;  because  a  power  independent  of  the  society  may 
as  well  espouse  the  unjust  views  of  the  major,  as  the 
rightful  interests  of  the  minor  party,  and  may  possibly 
be  turned  against  both  parties.  The  second  method  will 
be  (is)  exemplified  in  the  federal  republic  of  the  United 
States.  Whilst  all  authority  in  it  will  be  derived  from 
and  dependent  on  the  society,  the  society  itself  will  be 
broken  up  into  so  many  parts,  interests,  and  classes  of 
citizens,  that  the  rights  of  individuals,  or  of  the  minority, 
will  be  in  little  danger  from  interested  combinations  of 
the  majority.  In  a  free  government  the  security  of  civil 
rights  must  be  the  same  as  that  for  religious  rights.    It 

'  No.  LI.  (Hamilton  or  Madison). 


84  Essentials  of  American  Government 

consists  in  the  one  case  in  the  multiplicity  of  interests, 
and  in  the  other  in  the  multiplicity  of  sects.  The  degree 
of  security  in  both  cases  will  depend  on  the  number  of 
interests  and  sects;  and  this  may  be  presumed  to  depend 
on  the  extent  of  country  and  number  of  people  compre- 
hended under  the  same  government. 

and  again': 

25.  To  give  a  minority  a  negative  upon  the  majority 
(which  is  always  the  case  where  more  than  a  majority  is 
requisite  to  a  decision)  is,  in  its  tendency,  to  subject  the 
sense  of  the  greater  number  to  that  of  the  less.  .  .  . 
The  public  business  must  in  some  way,  or  other,  go  for- 
ward. If  a  pertinacious  minority  can  control  the  opinion 
of  a  majority,  respecting  the  best  mode  of  conducting  it, 
the  majority,  in  order  that  something  may  be  done, 
must  conform  to  the  views  of  the  minority;  and  thus  the 
sense  of  the  smaller  number  will  overrule  that  of  the 
greater,  and  give  a  tone  to  the  national^  proceedings. 

In  America  majority  rule  is  prevalent;  minority 
representation,  exceptional. 

26.  Hamilton  devotes  one  number  of  the 
Federalist^  to  a  discussion  of  the  question  wheth- 
er different  classes  of  the  people  should  be 
represented  "by  persons  of  each  class,"  i.e.y 
merchants  by  merchants ;  mechanics  by  mechan- 
ics; the  learned  professions  by  lawyers,  doctors, 

'  Federalid,  No.  XXII.     (Hamilton). 
"  Also  state  or  local  proceedings. 
3  No.  XXXV. 


The  Legislative  85 

clergymen;  the  landed  interest  by  landowners, — 
and  he  pronounces  the  idea  "altogether  vision- 
arj^"  His  answer  is  that  "a  man  who  is  a  can- 
didate for  the  favor  of  the  people,  and  who  is 
dependent  on  the  suffrages  of  his  fellow-citizens 
for  the  continuance  of  his  public  honors  (will) 
take  care  to  inform  himself  of  their  dispositions 
and  machinations  and  (will)  be  willing  to  allow 
them  their  proper  degree  of  influence  upon  his 
conduct."  "This  dependence  and  the  necessity 
of  being  bound  himself,  and  his  posterity,  by  the 
laws  to  which  he  gives  his  assent,  are  the  true, 
and  they  are  the  strong  chords  of  sympathy 
betv/een  the  representative  and  the  constituent." 
27.  Another  form  of  minority  representa- 
tion is  proportional  representation.^  Whatever 
method  be  followed,  the  purpose  is  to  secure  the 
ends  sought  by  representation.  Thus  far,  in 
America,  representation  of  the  majority  has 
been  considered  equitable,  in  quite  all  instances.^ 

'  Examined  at  length  by  Thomas  Hart,  The  Election  of  Represen- 
talivcs,  and  by  J.  S.  Mill,  Representative  Government.  Consult  also 
the  article  on  "Representation,"  Encyclopaedia  Britannica,  11th 
Edition,  XXIII..  108-116. 

'  There  is  nothing  in  the  Constitution  of  the  United  States  that 
forbids  minority  or  any  form  of  proportional  representation.  The 
mere  method,  or  procedure  of  securing  representation  is  not  there  fixed. 
For  an  application  of  the  principle  of  representation  by  other  than 
"  majority  rule  "  see  Constitution  of  Ohio,  Art.  XI.,  §§  2,  3,  4;  I'linois, 


86  Essentials  of  American  Government 

28.  Against  minority  representation,  in  any 
form,  objection,  elaborated  in  argument,  is 
made  that  only  majority  representation  can  fix 
responsibility  in  legislation. 

29.  As  the  essential  purpose  in  legislation  is 
to  establish  justice,  and  as  representation  is  the 
basis  of  American  government,  the  conclusion 
is  inevitable  that  only  complete  representation 
can  establish  justice.  In  theory,  the  sovereign 
can  do  no  wrong, — i.e.,  no  unlawful  act.  In 
America  the  people  are  sovereign.  To  law- 
makers they  delegate  powers  of  legislation. 
Legislatures, — the  Congress,  the  State  Legisla- 
tures, are  agents  elected  by  the  people  for  a 
particular  purpose.  Ours  is  "a  government  of 
laws,  not  of  men."^     Of  vast  practical  impor- 

1870,  Art.  IV.,  §§  7,  8;  minority  representation  as  to  election  of  num- 
bers of  the  lower  branch  (H.  R.)  of  the  State  Legislature;  Pennsyl- 
vania, 1873,  Art.  XIV.,  §  7  (minority  rule  applied  in  the  election  of 
county  auditors  and  county  commissioners).  See  F.  D.  Bramhall, 
The  History  of  Cumulative  Voting  and  Minority  Representation  in 
Illinois,  1870-1919. 

'  Aside  from  long  personal  experience  in  legislation,  or  adequate 
study  of  the  subject,  knowledge  of  it  is  likely  to  be  scanty  and  un- 
reliable. 

The  American  constitutions  are  the  source  of  information,  and 
instructor  and  student  are  directed  to  these  as  of  primary  significance. 
The  constitution  of  any  State  (preferably  one's  own)  may  be  made 
the  basis  for  comparison.  The  Article  in  a  State  constitution  entitled 
"The  Legislature"  (or  equivalent)  is  usually  the  longest  and  the 
most  detailed.     Provisions  aflfecting  legislators  and  legislation,  and 


The  Legislative  87 

tance,  in  legislation,  is  the  appropriation  of  public 
money.  The  procedure  involves  the  whole 
question  of  the  "  Budget."  This  estimate  may  be 
made  by  the  Executive  only  (with  aid  of  Heads 
of  Departments),  by  the  Legislative  (Commit- 
tees) only;  or  by  conjunction  of  both.  Should  it 
be  mandatory? 

especially,  representation,  will  also  be  found  in  other  Articles.  For  a 
discussion  of  two  important  powers  of  legislatures,  see  the  Chapters 
on  "Taxation"  and  "Commerce."  An  excellent  work  is  American 
Legislatures  and  Legislation,  by  Paul  R.  Reinsch. 


CHAPTER  IX 


THE    EXECUTIVE 


1.  The  people  of  the  United  States  vest 
executive  power  in  a  President;  the  people  of  a 
State,  in  a  Governor.  The  President  is  elected 
by  special  electors;  called  presidential  electors 
who  are  elected  by  the  people.  The  Constitution 
of  the  United  States  provides  "that  each  State 
shall  appoint  in  such  manner  as  the  Legislature 
thereof  may  direct  a  number  of  electors,  equal 
to  the  whole  number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the 
Congress.'"  Further  provision  is  made  by  the 
Constitution  for  the  election  of  the  President  by 
these  electors;  also  for  his  election  in  case  these 
electors  fail. 

2.  In  case  of  their  failure  to  elect  a  President 
the  election  devolves  on  the  House  of  Representa- 
tives to  choose  him,  each  State  having  one  vote.^ 

'Art.  II.,  2. 

'See  original  provision.  Art.  II.,  3,  and  Amendment  XII.  (1804). 

88 


The  Executive  89 

3.  Governors  are  chosen  by  direct  vote  of  the 
people  of  a  State.  It  will  be  observed  that  the 
federal  Constitution  leaves  the  method  of  secur- 
ing presidential  electors  (known  popularly  in  the 
aggregate  as  the  Electoral  College)  to  the  respec- 
tive State  Legislatures, — a  statutory  proceeding, 
and  a  recognition  (as  in  case  of  a  disputed  elec- 
tion, when  the  House  elects)  of  the  portion  of 
sovereignty  remaining  in  the  States, — analogous 
to  the  recognition  of  that  portion  implied  by  the 
equal  vote  allowed  each  State  in  the  Senate  of 
the  United  States. 

4.  Both  the  national  Constitution  and  that 
of  each  State  prescribes  qualifications  of  its 
executive  as  to  citizenshp  and  residence;  the 
federal  Constitution  also  (as  some  State  constitu- 
tions) that  of  age.  The  federal  also  prescribes 
nativity.^ 

5.  These  constitutions  provide  also  for  elec- 
tion of  a  Vice-Executive, — the  Vice-President, 
the  Lieutenant-Governor,  qualified  as  the  chief- 


South  Carolina  was  the  last  State  "to  appoint"  presidential  electors 
(1860);  in  all  States  they  are  elected  by  direct  vote  of  the  people,  and 
generally  as  State-wide  candidates;  not  by  districts. 

^  Though  nativity  is  not  usually  required  of  governors  by  the 
written  constitution  of  a  State,  persons,  not  native-born  are  rarely 
chosen  governors. 


90  Essentials  of  American  Government 

executive,  and  made  President  of  the  Senate 
(federal  or  State)  whenever  he  chooses  to  execute 
the  office.  In  case  of  the  death,  resignation,  or 
inabihty  of  the  Chief -Executive  to  perform  the 
duties  of  his  office  they  fall  upon  the  Vice- 
Executive. 

6.  In  case  of  the  death,  resignation,  or  in- 
ability of  both  Chief -Executive  and  Vice-Execu- 
tive, the  succession  in  execution  of  the  executive 
office  is  according  to  the  law.^ 

7.  Thus  in  the  vesting  of  executive  powers 
by  the  people  the  principle  of  representation  ob- 
tains. The  executive  possesses  delegated  powers. 
These  powers  are  limited  in  time,  by  the  term  of 
his  office,  and  are  limited  in  kind  by  specific 
provisions,  chief  of  which  are  as  to  executive  use 
of  the  pardoning  power  and  of  the  appointing 
power. 

8.  There  is  a  theory  of  government  that  it 
emanates  originally  from  the  executive, — say  as 
chief,  as  leader,  as  the  strong  man.  So  Carlyle's 
remark  on  the  word  *'king,"  as  derived  from 
hoejiig,  koennen,  the  man  who  can.     Whatever 


^  That  is  by  statute:  Act  of  Assembly  or  of  the  Congress,  as  the 
case  may  be.  The  act  is  known  as  the  presidential,  or  the  guber- 
natorial succession  law. 


The  Executive  91 

theory  of  the  origin  of  government  may  be  ad- 
vanced, the  evidence  of  history  supports  the 
view  that  the  king  (or  whoever  dominated  pub- 
Uc  affairs)  granted  privileges  {e.g.,  as  Queen 
Ehzabeth  and  other  sovereigns  granted  charters), 
and  privileges  are  asserted  by  their  holders  as 
rights.  Or, — another  view, — the  people  com- 
pelled grants  and  privileges  which  are  denomi- 
nated "natural  rights" — as  set  forth  in  the  De- 
claration of  Independence. 

9.  Whatever  theory  may  be  held  of  the  origin 
of  government  among  men,  all  agree  that  the 
republican  form  means  elimination,  more  or  less, 
of  the  monarchical  or  absolute  form.  The  par- 
doning and  the  appointing  power  of  the  executive 
are  his  principal  powers.  His  so-called  partici- 
pation in  legislation,^ — by  approval  or  disap- 
proval of  bills  is  (as  Hamilton  might  say)  "a 
constitutional  recognition  of  the  portion  of 
sovereignty  remaining"  in  the  executive, — a 
portion,  in  the  concept  of  representative  govern- 
ment, delegated  to  him  by  the  true  sovereign,  the 
people.  Fundamentally,  in  the  American  system 
of  government,  all  the  powers  of  the  executive 
are  delegated  powers.  Limitations  of  his  powers 
mean  no  more  than  that  the  sovereign  has  not 


92  Essentials  of  American  Government 

delegated  some  powers  to  him,  or,  to  use  con- 
stitutional language,  they  ''are  reserved  to  the 
States  respectively,  or  to  the  people.'" 

10.  The  pardoning,  the  appointing,  and  all 
other  powers  vested  in  the  Executive,  federal  or 
State,  are  evidences  of  their  respective  jurisdic- 
tions. Thus  the  President  makes  treaties  "pro- 
vided two  thirds  of  the  Senators  present  concur"; 
"no  State  shall  enter  into  any  treaty,  alliance,  or 
Confederation," — hence  no  Governor  can  make  a 
treaty.  This  limitation  may  be  understood  as 
incident  to  the  respective  jurisdictions  of  the  two 
executives.  A  jurisdiction  may  be  described  as 
a  domain  within  which  power  is  exercised, — or  a 
function,  capacity,  or  office  of  judging  or  govern- 
ing. The  American  people  have  established  two 
jurisdictions, — one,  of  the  United  States,  the 
other,  of  the  several  States.  These  jurisdictions 
are  subdivided,  for  purposes  of  estabhshing 
justice.^ 

'  An  examination  of  the  federal  Constitution,  and  of  any  State 
constitution,  reveals  the  limitations  on  the  Executive.  See  Charters 
and  Constitutions. 

^  In  the  United  States  and  in  the  States  the  subdivisions  are  execu- 
tive, legislative,  judicial,  and  administrative.  The  subdivisions  are 
innumerable, — such  as  the  authority  of  minor  officials.  For  an 
account  of  some  of  these  divisions  and  subdivisions  see  The  American 
State  Series, — e.  g..  The  American  Executive  and  Executive  Methods,  by 
J.  H.  Finley;  Local  Government  in  Counties,  Towns  and  Villages,  by 


The  Executive  93 

11.  The  essential  function  or  duty  of  an  ex- 
ecutive is  "faithfully  to  execute  the  office," — as 
is  stated  in  the  oath  taken  by  the  President  or 
the  Governor  before  he  enters  upon  the  execution 
of  his  office.  An  illustration  in  point  is  Lincoln's 
statement  to  Horace  Greeley,  in  his  letter  of 
August  22, 18G2:  "  My  paramount  object  .  .  . 
is  to  save  the  Union."  This  is  the  solemn  mean- 
ing of  the  presidential  oath, — the  full  signifi- 
cance of  the  President's  sworn  promise,  "faith- 
fully to  the  best  of  my  ability  (to)  preserve, 
protect,  and  defend  the  Constitution  of  the 
United  States."  And  what  is  the  Constitution? 
"The  Supreme  Law  of  the  land."  Who  ordained 
and  established  this  law?  "The  people  of  the 
United  States." 

12.  For  what  purpose?  "To  establish  jus- 
tice." Thus  the  American  people  vest  executive 
power  in  a  President  of  the  United  States,  and 
the  people  of  the  several  States  vest  executive 
power  in  a  Governor,  for  one  fundamental 
purpose:    "to  establish  justice." 

J.  A.  Fairlie;  Territories  and  Colonies,  by  W.  F.  Willoughby.  The 
Federalist  discusses  "jurisdiction,"  passim.  So  too  James  Bryce,  in 
his  American  Covimonwcalth.  The  word  "jurisdiction"  is  commonly 
used  with  reference  to  the  authority  of  a  court  of  law;  it  may  properly 
be  used  with  reference  to  that  of  a  legislature,  or  an  executive. 


'94  Essentials  of  American  Government 

13.  Every  Governor,  before  entering  upon 
the  duties  of  his  office,  takes  oath  (or  makes  affir- 
mation), faithfully  to  the  best  of  his  ability,  to 
preserve,  protect,  and  defend  the  constitution  of 
his  State  and  of  the  United  States.  All  laws  are 
made  by  authority  of  the  Constitution.' 

14.  The  whole  duty  of  the  Executive, — na- 
tional or  State  (or  subdivision  of  a  State,  as  a 
city) ,  is  to  execute  the  laws.  Simple  as  this  state- 
ment may  seem  it  means  an  immense  responsi- 
bility. Failure  to  execute  the  laws, — which 
means  "to  preserve,  protect,  and  defend  the 
constitution"  constitutes  a  misdemeanor,  or  a 
crime  (the  federal  Constitution  mentions  treason 
and  bribery),''  on  conviction  for  which,  the  execu- 
tive shall  be  removed.  The  procedure  by  im- 
peachment is  prescribed.^  The  impeachment  is 
the  accusation;  the  conviction  is  the  judgment 
resulting  in  removal  from  office.  President 
Johnson  was  impeached  but  not  convicted;  a 
Governor  of  New  York  was  both  impeached 

'  The  federal  Constitution  is  part  of  every  State  constitution; 
State  laws  comply  with  State  constitutions,  and  both  with  the  "Su- 
preme Law  of  the  land,"  Art.  VI.,  2.  It  is  the  custom  in  all  States 
for  oflScials  of  whatever  rank,  to  swear  allegiance  to  the  United  States, 
before  entering  upon  the  duties  of  their  oflBce. 

»  Art.  II.,  4. 

»  Both  in  the  federal  Constitution  and  in  that  of  a  State. 


The  Executive  95 

and   convicted.     The   entire   procedure   is  po- 
litical.' 

15.  The  American  Executive  is  an  elected 
oflficial,  vested  with  power  by  the  people.  He  is 
not  a  sovereign;  he  is  an  agent  of  the  sovereign, 
the  people.  In  every  respect,  his  office  conforms 
to  the  fundamental  idea  in  American  govern- 
ment,— the  principle  of  representation.'' 

'  See  D.  M.  De Witt's  The  Im-peachment  and  Trial  of  Andrew 
Johnson,  also  W.  A.  Dunning's,  Essays  on  the  Civil  War  and  Recon- 
slniction. 

'  The  power  of  a  President  of  the  United  States,  so  President  Hayes 
is  reported  as  remarking,  has  "never  been  realized,  and  the  practical 
use  of  power,  even  by  an  ordinarily  strong  President  was  (is)  greater 
than  the  books  ever  described.  .  .  .  The  executive  power  is  large 
because  not  defined  by  the  Constitution.  The  real  test  has  never 
come,  because  the  presidents  have,  down  to  the  present,  been  con- 
servative, or  what  might  be  called  conscientious  men,  and  have  kept 
within  limited  range.  And  there  is  an  unwritten  law  of  usage  that  has 
come  to  regulate  an  average  administration.  But  if  a  Napoleon  ever 
became  President,  he  could  make  the  executive  almost  what  he 
wished  to  make  it." 

C.  E.  Stevens,  Sources  of  the  Constitution  of  the  United  States,  169  n. 
This  remark  by  President  Haj'es  may  be  compared  with  Hamilton's 
characterization  of  the  national  Executive  inXhe Federalist,  No.  LXIX. 


CHAPTER  X 

THE   JUDICIARY 

1.  The  people  of  the  United  States  vest 
judicial  power  in  one  Supreme  Court  and  in  such 
inferior  courts  as  Congress  may  from  time  to  time 
establish';  the  people  of  the  several  States  vest 
the  judicial  authority  of  the  State  in  like  man- 
ner, by  the  several  State  constitutions.  In  all 
matters  in  which  the  Constitution  of  the  United 
States,  an  act  of  Congress  or  a  treaty  is  con- 
cerned, the  federal  courts  have  jurisdiction.  In 
as  much  as  the  federal  Constitution  is  part  of 
every  State  constitution  and  all  State  judges  are 
bound  by  oath  by  that  constitution,  the  State 
courts  also  have  jurisdiction  in  cases  arising 
under  the  Constitution,  an  act  of  Congress,  or  a 
treaty.  But  final  judgment  in  such  cases  rests 
with  the  Supreme  Court  of  the  United  States. 
In  any  court  of  law  judgment  is  rendered  only 
after  trial, — or  as  the  Constitution  says,  by  "due 

'  Art.  III.,  1. 

96 


The  Judiciary  97 

process  of  law."  There  is  an  issue,  a  disputed 
point  between  parties,  constituting  a  *'case  at 
law"  before  the  court,  and  no  other  issue  is  tried. 
Whether  the  case  is  tried  by  a  federal  or  a  State 
court — each  having  jurisdiction — depends  largely 
on  the  will  of  the  parties  and  the  advice  of  counsel. 

2.  It  may  be  said  that  jurisdiction  often  de- 
pends upon  (a)  the  nature  of  the  case,  or  (b) 
the  status  of  the  parties.  The  Constitution  of  the 
United  States  describes  the  judicial  power  of 
the  United  States  as  to  the  parties  and  the  case 
in  the  second  section  of  the  third  article.  Wheth- 
er or  not  the  case  shall  be  brought  in  the 
Supreme  Court  by  appeal  from  some  lower 
court,  or  directly, — or  as  the  Constitution  says, 
— come  within  the  "original  jurisdiction"  of  the 
Supreme  Court,  depends  upon  (a)  the  nature 
of  the  case  and  (b)  the  status  of  the  parties. 
The  original  jurisdiction  of  the  Supreme  Court 
of  the  United  States  is  limited  to  cases  "affecting 
ambassadors,  other  public  ministers  and  con- 
suls, and  those  in  which  a  State  shall  be  a  party. "^ 

3.  This  original  jurisdiction  recognizes  the 
status  of  the  party  as  sovereign,  or  representa- 
tive of  sovereignty.     The  "State"  means  the 

'Art.  III.,  Sec.  2:2. 

7 


98  Essentials  of  American  Government 

people  of  a  State, — who,  for  many  purposes  are 
sovereign/  Ambassadors,  public  ministers,  and 
consuls  are  the  agents  or  representatives  of  sover- 
eigns. Because  of  the  character, — nature  (sta- 
tus) of  the  parties,  the  Constitution  provides 
that  they  may  start  their  case  in  the  Supreme 
Court  of  the  United  States. ""  Rarely  is  a  case 
before  this  court  at  first  instance ;  quite  all  cases 
before  it  are  on  appeal  from  an  inferior  federal 
court,  or  from  the  highest  Court  of  a  State 
(usually  called  in  its  Constitution,  the  Supreme 
Court).  The  procedure  in  cases  of  appeals  is 
regulated  by  law;  the  principal  law  being  the 
federal  Judiciary  act  of  1789,  as  amended. 

4.  The  constitution  or  the  law  may  authorize 
the  existence  of  a  court,  but  the  opinion  or  judg- 
ment of  a  court  rests  with  the  court  (the  judge, 
or  judges)  itself.  This  discretional  power,  vested 
in  a  court  comprises  its  independence.  Judicial 
independence  is  the  essential  characteristic  or 
quality  of  a  court,  within  its  own  jurisdiction. 
Supreme,  complete,  final  jurisdiction  exists  in  a 

>  Discussed  by  Marshall  in  Cohens  v.  Virginia,  6  Wheaton  264 
(1821);  by  Hamilton  in  the  Federalist,  LXII.  See  also  the  author's 
Essentials  of  Constitutional  Law,  Index,  "Sovereignty." 

»  The  nature  or  status  of  the  parties  is  discussed  by  Marshall  in 
Marbury  v.  Madison,  1  Cranch  137  (1803). 


The  Judiciary  99 

court  so  vested  with  power  by  the  people.  The 
opinion  of  the  Supreme  Court  of  the  United 
States  is  final  in  all  cases  which  reach  it.  The 
opinion  of  a  State  Supreme  Court  is  final  in  all 
cases  which  reach  it, — unless  an  appeal  lies  to 
the  Supreme  Court  of  the  United  States  by 
reason  of  the  Constitution  of  the  United  States, 
or  an  act  of  Congress,  or  a  treaty.  The  essential 
basis  for  such  an  appeal  is  that  the  issue  on  trial 
before  the  State  Court  involves  the  supreme  law 
of  the  land.^  Thus  the  fundamental  purpose  of 
the  entire,  vast  judicial  machinery  of  the  United 
States  and  of  the  States  is  for  the  sole  purpose 
of  establishing  justice. 

To  this  end  all  courts  of  law  are  established. 

5.  Courts  are  classified  in  many  ways  and  for 
different  purposes.  And  first  into  federal  and 
State  Courts. 

Federal  courts  are. 

(1)  One  Supreme  Court. 

(2)  Inferior  Courts. 

6.  Inferior  federal  courts  are  established  by 
the  Congress  and  are  constitutional  courts,  the 


'  By  this  is  meant  some  right  of  a  party  to  the  case  (the  issue)  as 
determinable  by  the  Constitution,  an  act  of  Congress  or  a  treaty  is 
is  affected. 


100  Essentials  of  American  Government 

judges  holding  their  offices  during  good  be- 
havior. 

The  inferior  federal  courts  are  the  Circuit 
Courts,  nine  in  number,  one  for  each  of  the 
great  divisions  of  the  people  of  the  United  States, 
made  by  Congress  for  judicial  purposes;  and  the 
District  Courts,  one  for  each  of  the  Judicial 
Districts  into  which  the  people  of  the  United 
States  are  further  subdivided  by  Congress.^ 

7.  Every  Circuit  Court  jurisdiction  has  a 
resident  judge  or  judges,  and  the  nine  judges  of 
the  Supreme  Court  may  preside,  respectively,  in 

"  The  nine  Divisions  of  the  country  for  judicial  purposes,  known  as 
the  nine  Circuits,  are: 

I.  Mr.  Justice  Holmes.  Maine,  New  Hampshire,  Massachusetts, 
Rhode  Island,  and  Porto  Rico. 

II.  Mr.  Justice  Brandeis.    Vermont,  Connecticut,  New  York,  3. 

III.  Mr.  Justice  Pitney.  New  Jersey,  Pennsylvania,  3;  Dela- 
ware. 

IV.  Mr.  Chief- Justice  Taft.  Maryland,  Virginia,  4;  North 
Carolina,  2;  South  Carolina.  ■* 

V.  Mr.  Justice  McReynolds.  Georgia,  2;  Florida,  2;  Alabama,  3; 
Mississippi,  2;  Louisiana,  2;  Texas,  4. 

VI.  Mr.  Justice  Day.  Ohio,  2;  Michigan,  2;  Kentucky,  2; 
Tennessee,  3. 

VII.  Mr.  Justice  Clarke.    Indiana,  Illinois,  3;  Wisconsin,  2. 

VIII.  Mr.  Justice  Van  Deventer.  Minnesota,  Iowa,  2;  Missouri, 
2;  Arkansas,  2;  Nebraska,  Colorado,  Kansas,  North  Dakota,  South 
Dakota,  Oklahoma,  2;  Wyoming,  Utah,  New  Mexico. 

IX.  Mr.  Justice  McKenna.  California,  2;  Oregon,  Nevada, 
Montana,  Washington,  2;  Idaho,  Arizona,  Alaska,  Hawaii.  (The 
figure  attached  to  a  State  indicates  into  how  many  Judicial  Districts 
it  is  divided, — if  more  than  one.) 


The  Judiciary  loi 

these  Circuits.'  Each  Judicial  District  has  a  re- 
sident judge  (or  judges).  The  number  of  circuit 
district  federal  judges  is  determined  by  Congress, 
and  (in  theory  at  least)  is  determined  by  the 
amount  of  judicial  business  demanding  attention. 

8.  Territorial  Courts  and  the  Court  of  Claims 
of  the  District  of  Columbia  are  statutory  courts, 
established  by  Congress."" 

The  State  Courts  are : 

(1)  The  Supreme  Court. 

(2)  Inferior  Courts. 

The  Supreme  Court  (by  whatever  name  known) 
is  a  constitutional  court;  the  inferior  courts 
may  be  statutory  courts.  State  judges  are 
elected,  save  in  Massachusetts,  New  Jersey,  and 
Florida.^  Whether  a  judge  serves  by  election  or 
appointment  he  serves  in  a  representative  ca- 

'  As  indicated  above.  It  is  many  years  since  a  Justice  of  the 
Supreme  Court  of  the  United  States  has  "gone  on  circuit."  The 
immense  business  before  the  Supreme  Court  in  Washington  occupies 
its  full  time.  However,  a  Justice  of  the  Supreme  Court  has  jurisdic- 
tion and  may  sit  in  any  Federal  Court;  indeed,  he  may  sit  as  a  Justice 
of  the  Peace  or  in  any  State  Court,  or  Court  in  any  American  Posses- 
sion; but  he  has  no  jurisdiction  outside  the  judicial  jurisdiction  of  the 
United  States. 

*  The  judges  in  these  courts  (the  Court  of  Claims  consisting  of  a 
Chief-Justice  and  four  Associate  Judges)  are  appointed  for  a  term  of 
years,  by  the  President,  with  consent  of  the  Senate. 

3  In  Florida  the  seven  Circuit  judges  are  appointed  by  the  Governor 
and  confirmed  by  the  State  Senate.  Judges  in  other  courts  (the 
Supreme,  the  County)  are  elected,  except  when  appointed  by  the 


102  Essentials  of  American  Government 

pacity,  as  an  agent  of  the  people  to  perform 
delegated  judicial  powers. 

9.  The  inferior  Courts  of  a  State  (known  by 
various  names)  have,  respectively,  limited  juris- 
dictions: that  of  the  Supreme  Court  being  co- 
extensive with  the  jurisdiction  of  the  State;  that 
of  an  inferior  court  being  limited  by  district, 
county,  or  city  lines, — as  the  constitution  of  the 
State,  or  a  State  law  may  prescribe.  Thus, 
the  rank  of  any  court  of  law  is  measured  by 
its  jurisdiction — which  is  another  word  for  its 
powers.  All  these  powers  are  delegated.  Within 
its  jurisdiction,  a  court  is  independent  in  its 
judgments.  A  higher  court  as  authorized  by  law, 
may  remand  a  case,  which  comes  up  to  it  on  ap- 
peal from  a  lower  court,  to  this  lower  court  for  a 
new  trial,  or  with  instruction  to  render  a  par- 
ticular opinion,  or,  may  reverse  the  opinion  of 
the  lower  court,  giving  final  judgment  itself,  or 
may  confirm  that  opinion. 

The  explanation  of  all  this  procedure  is  the 
jurisdiction  of  the  higher  court.  As  soon  as  a 
case  is  entered  in  any  court,  that  court  has  (un- 
less an  error  has  been  made)  jurisdiction  as  to 

Governor  to  fill  a  vacancy.  Constitution  of  1894.  In  New  Jersey 
(Constitution,  1844)  and  Massachusetts  (Constitution,  1730)  all 
judges  are  appointed. 


The  Judiciary  103 

that  case,  and  continues  its  jurisdiction  until 
the  case  is  disposed  of.  Strictly  speaking,  no 
court  of  law  exercises  jurisdiction  in  any  matter 
not  before  it. 

10.  State  Courts  are  organized  usually  for 
special  purposes — i.e.,  they  sit  as  a  particular 
court, — e.g.,  as 

(1)  A  Civil  Court. 

(2)  A  Criminal  Court. 

(3)  An  Orphans  (Probate)  Court. 

(4)  An  Argument  Court  (usually  to  determine 
appeals;  hear  petitions,  etc.). 

(5)  An  Equity  Court. 

(6)  A  Police  Court. 

(7)  A  Justice's  Court. 
(And  others) 

Whatever  the  name  of  the  court  (and  the  same 
judge  (or  judges)  may  sit  as  a  civil,  or  a  criminal 
court)  the  essential  purpose  is  the  same, — to 
establish  justice,  and  the  court  sits  in  a  repre- 
sentative capacity. 

11.  The  French  judicial  system  recognizes 
"Courts  of  First  Instance," — i.e.,  in  which  the 
trial  or  examination  begins.  Usually  this  is  an 
inferior  court,  in  America, — and  commonly  with 
us,  justices'   courts,   police   courts,  aldermen's. 


104  Essentials  of  American  Government 

or  mayors'  courts  are  of  first  instance.  But  any 
tribunal  below  a  county,  or  district  court,  in 
America,  though  it  be  the  tribunal  in  which  the 
preliminary  hearing  occurs,  is  not  a  court  of  law 
in  the  sense  in  which  that  expression  is  used  in 
American  constitutions.  Or,  to  put  the  matter 
in  another  way,  no  justice  of  the  peace,  no  mag- 
istrate, no  mayor,  is  a  judge,  or  person  "vested 
with  judicial  powers"  (to  us  a  constitutional 
phrase).  Thus  commonly  we  speak  of  these 
tribunals  of  first  instance  as  not  being  "courts  of 
record." 

12.  By  this  we  mean,  legally,  that  a  court  of 
record  is  a  court  (a  tribunal  of  first  instance  is  a 
"court"),  whose  acts  and  proceedings  are  en- 
rolled as  a  perpetual  testimony, — or  (to  use  the 
language  of  the  Constitution)— as  "judicial 
proceedings,"' — a  court  which  has  jurisdiction 
to  fine  or  imprison,  or  has  jurisdiction  of  civil 
causes  above  an  amount  fixed  by  law  (jurisdic- 
tion of  criminal  causes  also), — and  which  pro- 
ceeds according  to  the  course  of  the  common 
law."*  Thus  courts  "not  of  record," — as  jus- 
tices and  magistrate's  courts  differ  from  "courts 

»  Art.  IV.,  1. 

»  37  Maine,  29;  also  8  Mass.  171.     (Opinion  by  Shaw,  C.  J.) 


The  Judiciary  io5 

of  record  "  in  degree,  or  jurisdiction :  which  means 
no  more  than  this, — that  the  people  have  vested 
greater  judicial  power  in  the  one,  than  in  the 
other.  All  American  courts,  of  whatever  juris- 
diction, keep  a  record  of  all  cases  which  come 
before  them.  The  record  of  the  case  in  the  jus- 
tice's or  magistrate's  court  may  be  brought,  by 
due  course  of  law,  into  the  higher  court  and  be 
there  incorporated  in  the  records  of  that  court. 
The  essential  here  is  that  every  court  of  law 
"proceeds  upon  inquiry,  and  renders  judgment 
only  after  trial." 

13.  This  fundamental  function  and  duty  of  a 
court  of  law  is  to  say  what  the  law  is.'  This  im- 
plies the  power  of  the  court  to  pronounce 
whether  or  not  the  law  harmonizes  or  conflicts 
with  the  Constitution.  Any  court  of  law.  State 
or  federal,  possesses  this  power.  It  follows  that 
government  in  America  is  a  government  of  law 
as  interpreted  by  men.  State  constitutions 
usually  prescribe  that  these  men, — the  judges, — 
shall  be  "learned  in  the  law," — i.e.,  experts  in 
judicial  matters.  The  written  federal  Constitu- 
tion does  not  prescribe  that  federal  judges  shall 
be  "learned  in  the  law,"  but  all  federal  judges 

»  Marshall  in  Marbury  v.  Madison.  1  Cranch  137  (1803). 


io6  Essentials  of  American  Government 

are  such  men,  the  practice  (as  it  were,  the  un- 
written law)  settHng  the  matter. 

14.  The  American  system  of  government 
provides  for  trial  by  jury, — which  always  ob- 
tains unless  such  procedure  is  waived  by  consent 
of  parties.  Every  legal  trial  in  whatever  court 
of  law,  is  by  "due  process  of  law."  This  brief 
phrase  covers  all  that  the  people  of  America, — as 
a  nation,  or  acting  by  States,  have  authorized  in 
ordaining  and  establishing  "a  republican  (repre- 
sentative) form  of  government."^ 

'  The  American  Judiciary,  by  Hon.  Simeon  E.  Baldwin,  LL.D., 
remains  the  best  account  of  the  entire  subject,  in  small  compass. 

The  Federalist,  Nos.  LXXVIII.-LXXXIII..  by  Hamilton,  is  the 
classic  exposition  of  the  Judiciary,  contemporaneous  with  the  making 
of  the  Constitution. 

J.  P.  Cotton's  Constitutional  Decisions  of  John  Marshall  reprints 
the  opinions  of  the  great  Chief-Justice  {i.e.,  of  the  Supreme  Court  of 
the  United  States  in  his  time),  2  vols. 

The  constitutions  of  the  several  States  (see  Charters,  Constitutions, 
and  Organic  Law  of  the  United  States,  etc.)  show  the  general  organiza- 
tion of  the  State  judiciary,  but  only  State  laws,  and  local  (especially 
city)  judicial  organization  can  explain  much  of  the  judicial  system 
in  a  State.  The  actual  working  of  American  courts,  discussed  ably 
and  somewhat  at  length  by  Bryce  (American  Commonwealth)  and 
others,  can  be  known  only  by  practice,  observation,  and  experience. 
Judge  Baldwin  (cited  above)  presents  the  whole  case.  Such  publica- 
tions as  the  American  Bar  Association  Journal,  the  Law  Review 
(Harvard,  Yale,  Boston,  etc.),  and  other  (numerous)  current  publica- 
tions (articles)  of  a  legal  character,  contribute  to  an  understanding  of 
the  subject.  The  reader  is  also  referred  to  the  bibliography  preceding 
the  Index  to  the  present  volume. 


CHAPTER  XI 

THE   ADMINISTRATIVE 

(State  and  Federal) 

1.  By  administration  is  meant 

the  activity  of  the  government  with  the  exception  of  the 
activity  of  both  the  Legislature  and  the  Courts;  .  .  . 
the  activity  of  the  executive  officers  of  the  government. 
The  government  administers  when  it  appoints  an  officer, 
instructs  its  diplomatic  agents,  assumes  and  collects 
taxes,  drills  its  army,  investigates  a  case  of  the  com- 
mission of  crime,  and  executes  the  judgment  of  a  court. 
Whenever  we  see  the  government  in  action  as  opposed 
to  deliberation,  or  the  rendering  of  a  judicial  decision, 
there  we  say  is  administration.  Administration  is  thus 
found  in  all  the  manifestations  of  executive  action.  ^ 

2.  The  Executive, — State  or  federal, — is  the 
chief  administrative  official  within  his  jurisdic- 
tion. In  an  early  day,  when  society,  industry, 
commerce,  and  human  activity  in  general  were 
comparatively  simple,  the  Governor,  the  Presi- 
dent, was  easily  able  to  attend  to  the  details  of 

'  F.  J.  Goodnow,  Administrative  Law,  i.,  1. 

107 


io8  Essentials  of  American  Government 

public  business  committed  to  him,  but  with  the 
almost  unmeasurable  increase  of  all  these  activi- 
ties,— transportation,  education,  public  health, 
insurance,  etc.,  the  Chief  Executive  is  unable 
alone,  to  secure  efficiency  of  administration, — 
whence  it  follows  that  he  must  depend  upon 
others  to  secure  efficiency.  The  administrative 
officials  in  State  and  in  Nation  number  many 
thousands:  they  are  all  public  servants, — hold- 
ing office  by  appointment  of  the  Executive, — 
sometimes  by  direct  election  by  the  people. 

3.  In  the  federal  government,  "the  principal 
officer  in  each  of  the  Executive  Departments"^ 
is  an  administrative  official, — and  these  "princi- 
pal officers"  comprise  the  President's  Cabinet. 
These  departments  (and  the  time  of  their  crea- 
tion) are,  of: 

(1)  State,  1789. 

(2)  Treasury,  1789. 

(3)  War,  1789. 

(4)  Attorney-General.  Office  established, 
1789;  Department  of  Justice,  1870. 

(5)  Navy,  1798. 

(6)  Post-Office.     (As  a  Department,  1829.) 

'  Art.  II.,  §  2,  1. 


The  Administrative  109 

(7)  Interior,  1849. 

(8)  Agriculture,  1889. 

(9)  Commerce  (and  Labor),  1903. 

(10)  Labor,    1913. 

4.  The  head  of  a  Department  is  known  as 
the  Secretary,  e.  g.,  of  State, — of  War,  etc.  He 
is  appointed  by  the  President.  The  Cabinet, — 
as  this  group  of  Secretaries  is  called  in  America, 
comprises  the  President's  official  advisers, — but 
he  is  free  to  accept  or  to  reject  their  suggestions.' 

5.  The  President  is  not  an  administrative  of- 
ficial. If  a  member  of  the  Cabinet  is  entrusted 
with  a  strictly  executive  duty,  like  the  President, 
he  cannot  be  controlled  as  to  performance  of  that 
duty  by  legislation  or  judicial  action, — i.  e.,  by 
Congress,  or  by  the  Court.  If  the  duty  of  the 
cabinet  officer  be  ministerial, — he  having  no 
discretion  in  its  performance, — a  court  of  law 
may  compel  him  to  perform  it  (usually  by  man- 

'  The  conduct  of  the  enormous  business  of  the  United  States  rests 
with  the  President.  He  is  responsible  to  the  people  for  the  faithful 
execution  of  his  office.  (Art.  II.,  §1:8.)  He  cannot  delegate  his 
responsibility.  Strictly  speaking,— all  the  duties  of  the  President  are 
executive;  all  the  duties  of  cabinet  officers  and  officials  in  the  several 
departments  are  ministerial, — but  the  Congress  may  by  law  make  the 
performance  of  an  act  by  a  cabinet  officer,  or  "head  of  a  depart- 
ment" discretionary,  and  to  that  extent,  executive,  and  not  minis- 
ierial. 


no  Essentials  of  American  Government 

damns;  if  forbidding   performance,  by   injunc- 
tion.y 

6.  In  the  service  of  the  people  of  the  United 
States, — subordinate  officials  and  employees  in 
the  "executive  departments"  of  the  federal 
government, — there  are  more  than  half  a  millon 
persons.  The  service  of  these  persons  is  known 
as  the  civil  service.  The  public  service  demands 
efficiency.  Ability  and  experience  are  essentials 
to  such  efficiency.  Permanency  in  office  con- 
tributes to  efficiency.  Since  1883,^  when  Con- 
gress enacted  the  first  civil  service  law  the  transi- 
tion from  the  "spoils"  to  the  "merit"  system 
has  made  progress.  The  essentials  of  the  civil 
service  system  are : 

(1)  The  appointment  shall  be  of  capable 
public  servants,  capability  to  be  determined  by 
"civil  service  examination."  Politics,  party 
affiliation  not  to  determine  the  choice. 

(2)  Competent  public  servants  shall  not  be 
discharged  except  for  cause,  the   civil   service 

'  (Mandamus) — Marbury  v.  Madison,  1  Cranch  137;  Gaines  v. 
Thompson,  7  Wall  347;  The  Secretary  v.  McGarrahon,  9  Wall  298; 
U.  S.  V.  Black,  128  U.  S.  40;  U.  S.  v.  Windom.  137  U.  S.  636;  U.  S.  v. 
Blaine,  139  U.  S.  306;  New  Orleans  v.  Paine,  147  U.  S.  261. 

(Injunction)  Mississippi  v.  Johnson,  4  Wall  475;  Georgia  v. 
Stanton,  6  Wall  57.    The  principle  applies  to  State  executives. 

»  January  I6th. 


The  Administrative  iii 

law  protecting  the  incumbent  against  discharge 
except  for  incompetency,  neglect  of  duty,  con- 
duct compelling  dismissal  "for  the  good  of  the 
service."  The  civil  service  law  empowers  the 
incumbent  to  defend  himself  as  a  public  servant. 
In  belief,  he  or  she,  under  the  law,  cannot  be 
removed  except  "for  cause."  Mere  political 
opposition  is  not  a  sufficient  cause  for  removal.^ 

7.  The  principle  of  the  civil  service  conforms 
to  that  of  representation. 

As  Lincoln  said, — "ours  is  the  people's  govern- 
ment." The  public  business, — the  government, — 
is  their  business.  That  it  be  conducted  efficiently 
is  the  will  of  the  people.  Whence  the  civil  service 
law  of  1883,  and  later  amendments.^ 

8.  Within  the  State,  administrative  effi- 
ciency is  demanded  by  the  people, — the  demand 
taking  the  form  of  constitutional  provisions,  of 
statutes,  and  of  public  opinion. 

Prior  to  1840  the  State  constitutions  may  be 
said  to  contain  little  or  nothing  specifically  ad- 

'  See  chapter  XXVIII,  "The  Civil  Service,"  in  James  T.Young's 
The  New  American  Government  and  Its  Work — with  its  references  to 
authorities  for  details.  The  principle  of  the  civil  service  is  rapidly 
being  given  application  and  extension  by  the  States. 

'  Not  all  administrative  officials  come  under  the  civil  service  law. 
E.  g.,  it  does  not  apply  to  cabinet  officers,  or  (generally  speaking)  to 
principal  (subordinate)  officials  in  the  "executive  departments." 


112  Essentials  of  American  Government 

ministrative  in  character.  To-day,  every  State 
constitution  (in  its  original  form,  or  by  amend- 
ment) contains  such  provisions.  The  trend,  at 
present,  is  toward  the  estabhshing  of  commis- 
sions, or  provision  for  a  Commissioner,  that  shall 
be  responsible  for  efficiency  in  a  Department  of 
the  State  government.  No  two  States  have 
quite  the  same  Departments, — but  in  the  aggre- 
gate, these  appear: 

Justice. 
Education. 
Mines  and  Mining. 
Labor. 
Insurance. 
Health. 
Banking. 

Roads  and  Highways. 
Forestry. 

Charities  and  Corrections. 
Corporations. 
Taxation  and  Finance. 
The  Sinking  Fund. 
Railroads  and  Canals. 
(And  others) 

9.  A  Commissioner  (or  a  Commission)  is 
vested  with  authority  as  the  head  of  these  (and 
other)    *' executive   departments, — "    the   head 


The  Administrative  113 

being  appointed  by  the  Governor  (with  consent 
of  the  State  Senate)  or  elected  by  the  people,  or 
appointed  by  the  Legislature, — as  by  law  pro- 
vided. 

The  aggregate  number  of  administrative  offi- 
cials in  the  forty-eight  States  is  very  great,  for  it 
includes  local,  county,  municipal,  State  whose 
activity  is  not  legislative  or  judicial, — the  Gover- 
nor himself  also  excluded/ 

10.  A  marked  tendency  in  recent  State  con- 
stitutions is  to  make  all  important  administra- 
tive offices  elective.  The  essential  purpose  in  the 
administration  of  the  State  governments,  as  in 
that  of  the  United  States,  is  to  establish  justice. 
Efficiency  of  administration  is  the  test.  Frank- 
lin's words  in  the  closing  hour  of  the  federal 
Convention  are  pertinent: 

There  is  no  form  of  government  but  what  may  be  a  bless- 
ing to  the  people  if  well  administered;  and  I  believe  fur- 
ther that  this  is  likely  to  be  well  administered  for  a  course 
of  years,  and  can  only  end  in  despotism,  as  other  forms 
have  done  before  it,  when  the  people  shall  become  so 
corrupted  as  to  need  despotic  government,  being  incap- 
able of  any  other.  ^ 

'  The  number  of  State  administrative  officials  is  not  available  as  an 
exact  number.  The  number  increases  continually  and  includes  all 
employees  in  the  Departments. 

'  One  is  reminded  of  a  passage  in  Pope's  celebrated  letter  to  Bishop 
8 


1 14  Essentials  of  American  Government 

The  fate  of  representative  government  de- 
pends upon  its  administration.' 

Atterbury,  November  20,  1717:  "I  hope  all  churches  and  all  govern- 
ments are  so  far  of  God,  as  they  are  rightly  understood,  and  rightly 
administered." 

'  Our  every  day  relations  with  government, — federal  or  State 
(especially  local),  reveal  the  efficiency  or  the  inefficiency  of  adminis- 
tration. Maladministration  of  office  is  suflacient  cause  for  impeach- 
ment, conviction,  and  removal  from  office.  Reelection,  or  re-appoint- 
ment of  an  official,  is  evidence  (generally)  of  that  official's  efficiency. 
The  whole  subject,  "The  Administrative,"  is  discussed  in  its  legal 
aspects,  by  President  F.  J.  Goodnow  in  his  two  volumes  on  Compara- 
tive Adminisfrative  Law  (the  U.  S.  A.  and  England,  France,  Germany), 
and  his  volume  on  Administrative  Law  treating  of  the  U.  S.  A.  The 
economic  aspects  of  "Administration"  are  treated  by  many  writers. 
Any  standard  textbook  on  Economics,  Transportation,  Finance, 
Trade  and  Commerce,  etc.,  discusses  the  subject  and  (usually)  gives 
an  adequate  bibliography.  The  issues  between  political  parties  are 
(usually)  administrative.  Magazines,  newspapers,  books,  pamphlets 
are  ever  presenting  some  phase  of  administration.  The  official  term 
of  President  or  Governor  is  called  an  administration:  a  fact  that  tells 
the  whole  story. 

For  an  account  of  the  new  civil  administrative  code  of  the  State 
of  Washington  (1920-21),  see  The  American  Science  Review,  Novem- 
ber, 1921,  and  the  same  for  administrative  consolidation  in  California. 


CHAPTER  XII 

POLITICAL    PARTIES 

1.  Persons  organized  as  a  unit  in  order  to 
control  the  public  business  (the  government) 
according  to  political  ideas  held  by  them  in 
common  comprise  a  political  party.  Govern- 
ment in  America,  State  and  federal,  is  party 
government.  Sometimes  (very  rarely)  when 
the  public  business  is  in  a  critical  condition,  a 
coalition  government  is  formed, — that  is,  the 
chiefs  of  state  are,  in  the  aggregate,  the  repre- 
sentatives (usually  the  leaders)  in  the  two  or 
more  parties  into  which  the  people  are  divided. 
In  America,  such  a  coalition  government  is 
formed  when  a  chief  executive,  State  or  federal, 
summons  to  his  council, — his  Cabinet, — as  heads 
of  executive  departments,  the  representatives 
(usually  the  leaders)  of  contending  parties.' 

I  Washington  thus  summoned  Hamilton  as  Secretary  of  the 
Treasury,  and  Jefferson,  Secretary  of  State.  The  irreconcilable  opin- 
ions of  these  two  men  led  finally  to  their  resignation  from  the  Cabinet. 
Lincoln's  Cabinet  was  a  coalition.    Here  difiference  of  opinion  among 

115 


ii6  Essentials  of  American  Government 

2.  Every  political  party  strives  to  becorae  the 
majority  and  thus  to  control  the  public  business. 
It  is  impossible  to  define  all  the  differences  of 
opinion  which  characterize  political  parties;  the 
principal  differences  are  shown  by  their  respec- 
tive "platforms,"  or  party  creeds.  These  plat- 
forms, the  separate  parts  or  paragraphs  of  which 
are  called  "planks,"  are  adopted  by  representa- 
tives or  delegates  of  the  party  assembled  in 
Convention, — the  name  of  these  Conventions, — 
County,  State,  National  indicating  the  political 
jurisdiction  represented.  In  these  Conventions, 
platforms  are  adopted  and  party  candidates  for 
office  are  named.  The  platform  and  the  candi- 
dates agreed  upon,  the  Convention  adjourns, 
sine  die,  and  the  people  (the  voters)  within  the 
jurisdiction,  at  the  polls,  accept  or  reject  the 
platform  and  the  candidates.  Or,  nomination  of 
a  candidate  may  be  made  by  "petition," — i.  e., 
by  signature  of  a  percentage  of  the  voters 
within  the  jurisdiction, — the  percentage  is  fixed 
by   law, — and   this   candidate   is   voted   for   or 

counselors  of  an  executive  do  not  mark  the  council  as  a  coalition. 
The  difference  must  be  partisan.  President  Wilson  was  criticized,  in 
certain  quarters,  because  he  did  not  form  a  Coalition  Cabinet  during 
the  World  War,  and  did  not  summon  some  other  than  men  of  his  own 
party  as  advisers  when  he  went  to  the  Versailles  Conference. 


Political  Parties  n? 

against,  as  all  the  candidates  named  by  a  con- 
vention. 

3.  Plainly,  here,  the  principle  of  representa- 
tion is  followed, — in  choosing  delegates  to  the 
Convention, — in  nominating  candidates,  and 
in  the  election  of  them. 

Historically,  there  are  two  great  parties  in  the 
United  States, — the  Hamiltonian  and  the  Jeffer- 
sonian, — i.  e.,  the  party  of  liberal,  and  that  of 
strict  construction  of  the  Supreme  Law  of  the 
land.  The  history  of  political  parties  in  America 
discloses  marked  variation  from  this  difference, 
at  times;  the  Hamiltonians  supporting  the  Jeffer- 
sonians.'  The  issue  between  parties  is  usually 
administrative,  as  for  example,  taxation:  not 
that  there  shall  or  shall  not  be  taxation,  but  shall 
this  or  that  article  or  interest  be  taxed  and  hoiu 
much:  essentially,  an  issue  of  method,  or  procedure. 

4.  At  present  the  American  people  are 
divided,  politically,  into  three  national  parties, 
the  Republican,  the  Democratic,  and  the  Labor 
Party.  There  are  minor  groups,  or  parties, 
strictly  local.'     The  platforms  of  parties  must 


'  As  in  1803,  in  the  purchase  of  the  Louisiana  country;  again,  in 
the  support  of  Lincoln's  policies  by  Jeffersonians,  18G0-65. 

»  For  the  platforms  of  present  parties  see  the  World  or  the  Tribune 


ii8  Essentials  of  American  Government 

always  be  interpreted  by  events.  Usually,  the 
language  of  a  platform  is  ambiguous.  The 
makers  of  party  platforms  usually  succeed  in 
avoiding  direct  issues,  leaving  these  to  be  dis- 
cussed,— if  at  all, — during  the  campaign,  by 
selected  speakers  of  the  party.  Each  party 
publishes  a  handbook  for  the  use  of  its  speakers 
— as  a  guide,  monitor,  and  unifying  element  in  the 
campaign.  This  handbook  or  manual,  contains 
statements,  statistics,  and  other  matter  defensive 
of  the  doctrines  of  the  party,  and  as  destructive 
as  possible  of  the  doctrines  of  opposing  parties. 

5.  Not  only  speakers,  but  newspapers,  maga- 
zines, books,  pamphlets,  and  a  vast  "campaign 
literature"  support  the  party.  Also  business 
helps  by  subscriptions, — as  do  candidates  for 
office,  at  the  hands  of  the  party  and  their  friends. 
The  total  expenditure  of  energy  and  money  is 
almost  fabulous,  in  a  campaign.  In  order  to 
prevent  bribery  and  corruption,  laws  regulate 
the  amount  of  money  a  candidate  may  expend 
in  a  campaign,  or  require  him  to  file  a  report 
(open  to  the  public)  of  the  amount  expended.^ 

Almanacs.  For  platforms  1789  to  1896,  see  T.  H.  McKee's,  National 
Platforms  of  All  Political  Parties;  also  the  standard  encyclopaedias. 

'  The  wealthy  candidate  has  the  advantage  of  the  poor,  in  a 
campaign,  unless  the  law  strictly  regulates  expenditure,  by  or  for  the 


Political  Parties  119 

6.  Each  House  of  the  Legislature  of  a  State, 
each  branch  of  the  Congress  is  "the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own 
members,"' — and  a  majority  of  each  House 
renders  the  final  judgment.  The  majority  is 
always  of  one  party,  and  usually,  in  case  of  a 
disputed  election, — i.  e.,  of  two  persons  claiming 
the  right  of  a  seat  in  the  body,  the  vote  admitting 
either  claimant  is  political, — partisan.  Thus 
Republican  members  usually  vote  for  the  Re- 
publican claimant;  Democratic  members  for  the 
Democratic. 

However,  party  lines  are  often  broken,  in  a 
vote  on  the  case,  according  to  its  merits. 

7.  A  disputed  election  of  executive  or  minis- 
terial officials  is  usually  settled  by  the  recount 
of  the  ballots  in  a  court  of  law."" 


candidate.  It  is  not  unusual  for  a  candidate,  or  his  supporters,  to 
expend  more  for  his  election  than  the  salary  of  the  office  he  seeks. 
The  Newberry-Ford  case  (Michigan, — election  to  U.  S.  Senate) 
illustrates  fully  the  use  of  money  in  elections.  (See  Michigan  Sena- 
torial Election  67th  Congress,  1st  Session,  and  accompanying 
documents.) 

•  Art.  I.,  §  4. 

'  A  very  important  exception  is  the  case  of  disputed  election  of 
President  and  Vice-President  of  the  United  States.  See  Constitution, 
Art.  II.,  §§2,  3;  and  Amdt.  XII.  Usually  a  disputed  election  of  a 
Governor  is  settled  by  the  Court.  Examination  of  the  State  constitu- 
tion will  reveal  any  other  procedure. 


120  Essentials  of  American  Government 

8.  Political  parties,  duly  organized  according 
to  law,  are  essential  to  the  administration  of 
representative  government.  As  yet,  no  substi- 
tute for  them  has  been  discovered.  They  afford 
every  voter  an  opportunity  to  express  his  will,  as 
to  government.  He  may,  if  he  chooses,  vote 
independent  of  any  party.  The  ballot  is  printed 
and  distributed  usually,  by  authority  of  the 
State.  The  voter  must  use  this  imprint,  but  he  is 
free  to  add  to,  or  to  omit,  any  name  printed  on 
the  ballot.'  Without  exception,  voting  by  the 
people  directly,  is  by  ballot;  voting  by  their 
representatives  in  the  Congress,  or  the  State 
Legislature  is  viva  voce.  In  either  case,  the  voter 
votes  (or  is  supposed  to  vote)  a  free  vote, — i.  e.,  as 
his  judgment  dictates.  Election  laws,  State  and 
federal,  aim  to  secure  this  freedom. 

9.  In  America  all  voting  is  done  by  means  of 
State  machinery,  or  procedure.  There  is  no  dis- 
tinctively federal  procedure.  The  United  States 
utilizes  the  States  in  elections.  Thus  on  the 
official  State  ticket  there  appear  names  of  candi- 
dates as  presidential  electors,  as  Senators  of  the 
United  States,  as  Congressmen, — i.  e.,  members 
of  the  federal  House  of  Representatives.    That 

'  This  addition  or  omission  is  called  "scratching"  the  ballot. 


Political  Parties  121 

the  United  States  has  power  to  regulate  federal 
elections, — as  to  time,  manner,  and  other  details, 
is  unquestionable/ 

10.  In  order  more  perfectly  to  apply  the 
principle  of  representation  the  people  have  (or 
may  have)  different  days  for  State,  city,  and 
federal  elections,  thus  securing  undivided  atten- 
tion to  the  issue, — be  it  the  one  or  the  other. 
This  procedure  prevents,  or  tends  to  prevent, 
neglect  or  confusion  of  interests.  When  a  State 
election  occurs  at  the  same  time  as  a  presidential, 
the  vote  for  Governor  may  merely  be  due  to  the 
vote  for  President, — though,  were  the  election  of 
a  Governor  the  principal  issue,  the  result  might 
be  very  different.^  Ordinarily  if  a  State  goes 
Democratic  or  Republican  in  a  presidential 
election,  if  a  Governor  is  also  to  be  elected,  the 
vote  for  Governor  will  be  practically  the  same  as 
for  President.^ 

11.  There    are    more   than    twice   as   many 

'  Ex  parte  Siebold,  100  U.  S.,  371  (1870).  Ex  parte  Yarborough, 
110,  U.  S..  C51;  Wiley  v.  Sinkler,  179  U.  S.,  58  (1900). 

"  Grover  Cleveland's  election  as  Governor  of  New  York,  R.  B. 
Hayes'  of  Ohio,  Woodrow  Wilson's  of  New  Jersey,  in  presidential 
years,  despite  the  election  of  a  President  of  an  opposite  party,  made 
them,  later,  presidential  candidates. 

3  In  this  case  the  gubernatorial  candidate  is  said  to  "run  ahead  of," 
or  "behind"  his  ticket;  the  presidential  vote  being  the  unit  of  meas- 
ure (or  any  other  candidate  for  a  State  office). 


122  Essentials  of  American  Government 

''inhabitants"  of  the  United  States, — i.  e., 
"people"  in  the  common  use  of  the  word, — than 
"voters."'  Rarely  do  more  than  one  third  of 
the  voters  vote.  A  candidate  is  usually  elected 
by  a  majority  of  a  minority  of  voters.  However, 
the  representative  principle  here  prevails.  If 
government  in  America  is  actually  controlled  by 
a  minority, — that  minority  is  a  majority  of 
actual  voters  and  represents  all  the  people  within 
the  jurisdiction  concerned. 

12.  Should  this  be  remedied?  Can  it  be 
remedied?  Should  every  person  in  the  United 
States,  qualified  to  vote,  be  compelled  to  vote, 
or  suffer  a  penalty?^ 

Is  the  idea  (or  principle)  regulating  elections, 
by  law,  the  same  idea  (principle)  as  compelling 
the  voter  to  vote?  Would  the  principle  of  repre- 
sentation,— which  is  the  pivot  on  which  all 
republican  governments  turn,  be  violated  or 
observed  by  compulsory  voting? 

13.  In  other  words,  is  a  "republican  form  of 
government,"  such  as  prevails  in  America,  any 

'  The  present  population  is  about  110,000,000;  the  number  of 
voters,  about  55,000,000;  there  being  about  1,000,000  more  male 
than  female  voters. 

*  Compulsory  voting  was  tried  in  Georgia,  penalty  for  absenting 
and  neglecting  to  vote,  not  exceeding  five  pounds.  Constitution,  1777, 
Art.  XII.     Failure, 


Political  Parties  123 

less  or  any  more  representative  if  voters  are  free 
or  are  compelled  to  vote  at  elections?  Would 
American  political  institutions  be  more  or  less 
secure,  if  compulsory  voting  at  elections  was  the 
law  of  the  land? 

14.  By  free  and  frequent  elections,  the  people 
control  government  in  America.  Government 
with  us  always  reflects  the  will  of  a  dominant 
political  party.' 

'  The  subject, — elections,  is  discussed  by  every  writer  on  govern- 
ment in  America.  The  use  and  the  abuse  of  elections  are  quite  end- 
less subjects  of  examination.  The  details  of  elections  can  be  learned, 
in  any  State,  only  by  examination  of  its  election  laws.  Usually  these 
are  obtainable  in  a  single  volume, — together  with  instructions  for 
election  of  officers.  No  one  book  giving  the  election  laws  of  the 
several  States  exists.  The  authorities  cited  in  the  bibliography  at 
close  of  the  present  volume  discuss  "elections"  in  their  various  as- 
pects. For  a  special  work  on  the  subject  see  M.  Ostrogorski's 
Democracy  arid  the  Organization  of  Political  Parties;  Bryce's  Ameri- 
can Commonwealth;  P.  O.  Ray's  Introduction  to  Political  Parties  and 
Practical  Politics.  The  whole  subject  is  involved  in  the  larger 
Politics.  The  American  Party  System,  by  Charles  Edward  Merriam 
(1922),  is  the  most  exhaustive  work  on  the  subject;  it  comes  into 
the  author's  hands  too  late  to  be  included  in  the  Appendix,  "  I.  A 
Word  About  the  Books,"  or  to  be  indexed. 


CHAPTER  XIII 

PUBLIC    OPINION 

1,  Behind  American  government,  whatever 
the  jurisdiction,  federal  or  State,  Hes  piibUc 
opinion.  In  its  nature  pubhc  opinion  is  a  quahty 
or  element  of  a  people  as  a  whole,  being  composed 
of  a  consensus  of  many  minds;  essentially,  of  the 
majority.  It  is  in  a  large  sense  the  "They  say" 
of  a  people,  and  finds  expression  in  individual 
speech,  in  utterances  spoken  and  written, — con- 
versations, speeches,  sermons,  books,  news- 
papers, pamphlets,  circulars,  notices, — even 
whisperings. 

2.  The  forms  and  the  agencies  of  its  expres- 
sion are  numberless.  Public  opinion  is  doubtless, 
at  some  time,  a  private  thought  and  usually  this 
thought  spreads  by  means  of  the  agencies  above 
mentioned.  Nor  is  public  opinion  necessarily  the 
thought  of  the  educated  class,  or  of  the  mob. 

Even  public  opinion  has,  as  it  were,  its  jurisdic- 

124 


Public  Opinion  125 

tlon,  or  domain, — local  at  one  time,  continental 
at  another. 

3.  Thus  it  finds  expression  in  conformity  to 
law, — as  at  the  polls,  or  in  defiance  of  law,  as  at  a 
lynching.  It  dominates  a  precinct,  a  ward,  a 
portion  of  a  city  or  a  county,  supreme  over  law 
and  order,  or  supreme  when  there  is  no  law.  It 
is  not  the  opinion  of  a  class  or  cult, — as  of  this 
group  of  artisans  or  that  group  of  religionists, — 
for  groups,  or  sects,  or  factions  in  society  may  be 
controlled  by  a  public  opinion  held  by  a  greater 
number  than  their  own.  Thus  "the  public"  has 
"rights"  which  common  carriers  must  respect, 
even  though  these  carriers  are  at  war  among 
themselves.  Steamboats  and  trains  must  run, 
telegraphy  and  telephony  must  serve,  despite 
"strikes,"  "lock-outs,"  wage-disputes,  disputes 
over  time,  and  the  like. 

4.  Public  opinion  wills  that  the  "public" 
shall  suffer  no  harm.  Thus  public  opinion  sup- 
ports constitutions  and  laws, — or  condemns 
them, — with  the  result  that  the  law  is  "a  dead 
letter,"  or  is  supreme. 

5.  The  principal  problem  which  all  rulers, — 
all  candidates  for  office, — all  ofiicials, — all  agents 
of  the  people  in  government  seek  to  sojve  is  to 


126  Essentials  of  American  Government 

discover  and  to  comply  with  public  opinion.  In 
brief  this  problem  consists  in  knowing  and  doing 
what  is  "popular."  Doubtless,  in  America,  the 
best  illustration  of  this  concern  is  the  compliance, 
or  effort  at  compliance,  which  a  representative 
makes  with  respect  to  his  "constituency," — 
that  group  of  people, — usually  organized  as  a 
District,  which  he  represents.  How  often  does 
he  "consult"  his  constituency?  By  attention 
to  letters  from  persons  of  influence  in  it.  By 
assiduous  attention  to  its  newspapers, — their 
editorials,  their  "letters  from  the  people."  He 
consults  and  confers  with  its  "prominent"  citi- 
zens. He  believes  he  knows  its  "public  opinion." 
If  occasion  demands, — he  goes  among  his  constit- 
uents,— converses  with  all  sorts  and  conditions 
of  people,  and  shapes  his  course  accordingly. 

6.  In  an  absolute  monarchy  public  opinion  is 
the  opinion  of  the  monarch,  which  he  imposes  on 
his  subjects  by  force.  In  a  representative 
government,  public  opinion  is  the  will  of  the 
majority  which  it  imposes  on  the  minority. 
Essentially  the  rule  of  public  opinion  is  by  force. 
The  difference  is  that  between  a  power  of  the 
people  and  one  not  of  the  people.  No  more 
comprehensive,  epigrammatic  definition  of  repre- 


Public  Opinion  127 

sentative  government,  in  all  aspects  of  govern- 
ment has  been  made  than  Lincoln's  "govern- 
ment of  the  people,  by  the  people  and  for  the 
people."  Substitute  "opinion"  for  "govern- 
ment" in  this  saying,  and  you  have  a  descrip- 
tion of  the  power,  or  force,  which  controls  in 
America. 

7.  Public  opinion  is  ascertained  by  elections. 
Samuel  Adams  was  wont  to  say, — "When  fre- 
quent elections  cease,  liberty  dies."  The  fre- 
quency of  elections  depends  upon  the  will  of  the 
majority.  Shall  there  be  annual,  biennial,  or 
quadriennial  elections  for  State  legislators,  or 
other  public  servants  ?  Shall  a  State  Legislature 
sit  a  year  or  a  number  of  days  fixed  by  the  State 
constitution?^  The  tendency  in  America,  as 
dominated  by  public  opinion,  is  to  limit  sessions 
of  State  Legislatures  to  biennial  sessions;  to  fix 
the  length  of  a  session  by  the  State  constitution ; 
to  forbid  special  legislation;  to  forbid,  by  the 
same  authority,  legislative  consideration  of  new 
bills  the  last  (three,  ten.^)  days  of  a  session,  and  to 
discourage  extra  sessions  (unless  called  by  the 

'  The  Constitution  of  Georgia  provides,  "No  session  of  the  general 
Assembly  shall  continue  longer  than  forty  days,  unless  by  a  two- 
thirds  vote  of  the  whole  number  of  each  house."  Vote  of  1877.  Art. 
III.,  §  4,  Part  VI. 


128  Essentials  of  American  Government 

Governor)  or  "prolonged"  sessions  by  limiting 
the  pay  of  legislators  during  such  sessions.' 

8.  This  means  that  public  opinion,  demand- 
ing efficiency  in  government, — i.  e.,  at  the  hands 
of  public  servants, — seeks  to  realize  it,  in  legisla- 
tion, by  constitutional  restrictions.  A  similar  de- 
mand may  be  found  in  constitutional  restrictions 
as  to  executives  and  administrative  officials.^ 

9.  In  America  public  opinion  usually  finds 
expression  in  public  meetings  in  which  current 
issues  are  discussed  by  influential  citizens.  At 
time  of  agitation  of  a  matter,  these  meetings  are 
usually  attended  and  addressed  by  persons  not 
identified  with  politics  or  the  public  business. 
Known  abstention  from  identification  of  such 
persons  vv^ith  politics  usually  adds  to  the  in- 
fluence of  these  gatherings. 

10.  Sooner  or  later,  every  important  interest 
and  aspect  of  government  is  subjected  to  this 
test  of  public  opinion.  Public  servants  who  act 
counter  to  it  are  sure  to  be  displaced  by  others 
who  will  obey  such  opinion.     It  is  evident  how 

^  Examination  of  State  constitutions,  made  during  the  last  thirty 
years,  will  supply  illustrations.  See  Ala.,  1901;  Arizona,  1912;  Del., 
1897;  Miss.,  1890;  N.  Y.,  1891;  Mich.,  1850,  1908. 

*  The  instructor  may  advantageously  call  the  attention  of  the  class 
to  such  restrictions  in  State  constitutions.  See  American  Charters, 
Constitutions,  and  Organic  Acts. 


Public  Opinion  129 

essentially  important  is  a  healthy,  a  moral  public 
opinion. 

11.  Of  the  organs  of  public  opinion  in 
America    newspapers    undoubtedly    rank    first. 

Were  it  left  to  me  [wrote  Jefferson],  to  decide  whether  we 
should  have  a  government  without  newspapers,  or  news- 
papers without  a  government,  I  should  not  hesitate  a 
moment  to  prefer  the  latter.  But  I  should  mean  that 
every  man  should  receive  those  papers  and  be  capable 
of  reading  them.* 

12.  Dr.  Franklin  aimed  to  educate  public 
opinion,  which  he  did  with  marvelous  skill  and 
power  by  his  English  and  American  pamphlets."* 
He  is  ever  advocating  thrift,  material  and  moral; 
self -improvement;  self -education ;  the  use  of  the 
right  book ;  the  value  of  historical  studies ;  the  value 
of  debating  societies ;  of  public  libraries ;  of  scien- 
tific experiment, — and  of  education  in  general.^ 

Lincoln  molded  the  public  opinion  of  all  the 
northern  States  as  to  slavery  by  his  Debates 
with  Senator  Douglas  in  1858."^ 

'  Letter  to  Carrington,  January  16,  1787. 

'  See  particularly  his  Rvlcs  for  Reducing  a  Great  Empire  to  a  Small 
One,  and  his  Edict  of  the  King  of  Prussia, — also  his  Humble  Inquiry 
Into  the  Nature  of  Paper  Money. 

3 See  Franklin's  Influence  in  American  Education,"  Report,  U.  S. 
Bureau  of  Education,  1902. 

*  Printed  in  editions  of  Lincoln's  Tt'orks  (Century,  Gettysburg, 
or  Putnam  Edition)  and  in  special  editions. 
9 


130  Essentials  of  American  Government 

13.  The  pulpit  is  a  powerful  organ  of  public 
opinion  to  which  government  in  critical  times 
appeals/ 

14.  Sometimes  a  single  pamphlet  as  Paine's 
Common  Sense,  consolidates  public  opinion.^ 

15.  Of  vast  influence  in  molding  public  opin- 
ion in  America  are  the  attitude,  the  interests,  the 
claims  of  particular  classes.  This  is  shown  by  the 
industrial  history  of  the  country.  Public  opinion 
demands  a  fair  wage  and  a  full  day's  work  for 
artisans,  employees,  for  skilled  or  unskilled  labor. 
"Strikes,"  "Walk-Outs,"  and  labor  difficulties 
generally  receive  or  are  denied  the  support  of 
public  opinion  as  they  succeed  or  fail;  or,  fail  or 
succeed  as  they  receive,  or  are  denied  the  support 
of  public  opinion. 

16.  There  is  a  saying  in  America,  "Public 
Opinion  rules."  Always  there  is  demand  for 
"justice."  "Why" — asked  Lincoln,  "should 
there  not  be  a  patient  confidence  in  the  ultimate 
justice  of  the  people?"  The  important  word 
here  is   "ultimate."     After  all,  government  in 

I  E.  g.,  Lincoln's  appeal  to  the  churches;  Harding's,  as  to  support 
in  the  matter  of  the  Disarmament  Conference,  Washington,  1921. 
Thanksgiving  Proclamations  (by  Governors  and  Presidents). 

»  Doubtless  this  pamphlet  is  unique  in  American  history  in  its 
immediate  influence.  See  the  author's  Constitutional  History  of  the 
United  States,  l,  71. 


Public  Opinion  131 

America  rests  on  public  opinion  and  the  "ulti- 
mate justice  of  the  people." 

17.  Thus  we  must  return  again  to  the  prin- 
ciple of  representation.  Government  in  Amer- 
ica, federal  and  State,  represents  public  opinion. 
It  may  be  the  opinion  of  yesterday;  it  is  never 
the  opinion  of  the  future.  Indeed,  it  is  not 
always, — or  even  often, — the  public  opinion  of 
to-day. 

18.  Stability  is  a  fundamental  quality  sought 
in  government.  A  representative  government  is 
subject  to  frequent,  sudden,  even  violent  fluctua- 
tions of  public  opinion.  Hence  the  perils  of  such 
government. 

19.  Unquestionably  written  constitutions  are 
a  forceful  stabilizer  of  representative  govern- 
ment. The  forces  which  work  for  justice  stabi- 
lize public  opinion." 

'  Bryce  devotes  twelve  chapters  (Part  IV.)  of  his  work  on  The 
American  Commonwealth  to  a  consideration  of  "Public  Opinion." 
An  immediate  entrance  to  the  importance  of  the  subject  may  be 
found  in  The  Congressional  Record,  whose  pages  reflect  public  opinion 
in  "Petitions,"  "Bills  Introduced,"  "Messages  from  the  President"; 
speeches;  reprints  of  editorials,  public  addresses,  from  all  parts  of  the 
country;  and  statistics,  data,  information  quite  on  every  subject  of 
interest  to  mankind.  The  instructor  may  advantageously  call  atten- 
tion of  the  class  to  organs  and  agents  and  expressions  of  public  opin- 
\on,—e.g.,  Stowe's  Uncle  Tom's  Cabin  (1852),  which  greatly  influenced 
public  opinion  as  to  slavery;  the  Hamilton-Burr  duel  (1804)  affected 
public  opinion   as   to  dueling;  Henry  Ward  Beecher's  addresses  in 


132  Essentials  of  American  Government 

England  (1863),  which  influenced  British  opinion  as  to  the  Civil  War 
in  America;  the  sinking  of  the  Lusitania  (1915),  which  influenced 
public  opinion  in  America  as  to  the  attitude  of  this  country  in  the 
World  War.  In  local  matters,  many  illustrations  of  elections  as 
determined  by  public  opinion. 


CHAPTER  XIV 

INTERNATIONAL   RELATIONS 

1.  Because  the  United  States, — i.  e.,  "We  the 
people  of  the  United  States"  are  sovereign,  they 
have  international  relations.  They  constitute  a 
nation, — an  equal  sovereign  among  equal  sover- 
eigns/ The  Supreme  Law,  the  Constitution  of 
the  United  States,  recognizes  international  law 
and  international  relations  by  providing  (1) 
That  all  treaties  made,  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land";^  the  President 
"shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate  to  make  treaties,"^  and 
"in  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  the  Supreme  Court  shall 
have  original  jurisdiction.""^  These  positive  pro- 
visions distinctively  recognize  international  law 
as  part  of  the  supreme  law  of  the  land. 

'  Pares  inter  -pares  is  the  technical  expression. 

»  Art.  VI.,  2.  3  Art.  II.,  §  2-2.  "  Art.  III.,  §2:2. 

133 


134  Essentials  of  American  Government 

2.  But  negative  provisions  further  define 
limitations, — viz:  "No  State  (?'.  c.,  American 
Commonwealth)  shall  enter  into  any  treaty, 
alliance,  or  confederation.'"  Nor  is  this  the 
conclusion  of  the  matter:  to  the  extent  that  the 
United  States  is  delegated  with  sovereign  powers 
(these  powers,  strictly  speaking  are  not  sovereign 
— for  sovereignty  cannot  be  delegated;  they  are 
powers  delegated  by  the  sovereign, — "the  people 
of  the  United  States  ") — e.g. — 

To  coin  money. 
To  declare  war. 
To  regulate  commerce, 

it  alone  (not  a  Commonwealth)  can  exercise 
these  powers.  This  limitation  of  the  powers  of 
the  States  wholly  eliminates  them  from  the 
status  or  rank  of  nationality. 

3.  As  members  of  the  Union  the  several 
States  are  in  equality,  one  with  another, — or,  as 
the  law  expresses  the  relation,  whenever  a  new 
State  is  admitted, — "on  an  equal  footing  with 
the  original  States."^ 

'  Art.  I.,  §  10:  1. 

»  Art.  I.,  8:  17;  9:  6,  8;  10:  1,  2,  3;  Art.  III.,  2:  1,  2,  3;  Art.  IV.,  1:  1; 
2:1,2,3;  3: 1,2;  4:1;  Art.  V.;  Art  VI.,  2,  3;  Art.  VII.,  1;  Amendments 
VI.,  X.,  XL,  XIII.,  XIV.,  XV.,  XVI.,  XVII.,  XVIII.,  XIX. 


International  Relations  135 

4.  While,  with  respect  to  each  other  the 
States  have  entirely  separate  jurisdictions,  for- 
eign to  each  other, — they  are  not  in  international 
relations.'  There  is  a  similarity,  between  the 
United  States  and  a  State  in  the  matter  of  juris- 
diction, in  that  the  jurisdiction  of  each  is  limited, 
— that  of  the  State  as  a  municipality, — that  of 
the  United  States  as  a  nation.  No  nation  has 
jurisdiction  outside  of  its  own  domain  except 
with  consent  of  the  other  nation,  usually  ex- 
pressed by  treaty.  Consent  thus  given  is  not  an 
abandonment  of  sovereignty  excepting  by  con- 
sent of  the  sovereign.  Thus  every  treaty, — 
being  an  agreement  between  or  among  sovereign 
powers  is  a  concession  made  by  the  sovereign  for 
a  consideration  (trade,  land,  privileges)  for  a 
term  of  years.  Only  a  sovereign  power  can 
make  a  treaty. 

5.  International  law  being  recognized  by  the 
Constitution  of  the  United  States  becomes  the 
law  of  the  land,  and  therefore  in  every  State. 
Because  of  this  law,  the  people  as  a  whole  and 

See  the  "enabling  act"  for  admission  of  a  State  in  Charters  and 
Constitutions,"  e.  g..  Enabling  Act  of  Montana,  1889,  iv.,  2289. 

'  See  references,  previous  note,  as  to  State  equality,  and  inter- 
state relations,  particularly  as  to  judicial  records,  privileges,  and 
immunities  of  citizens,  etc. 


136  Essentials  of  American  Government 

the  people  as  individuals  are  bound.    Thus  what- 
soever rights  are  agreed  upon  by  two  or  more 
nations  (the  high  contracting  parties)  as  to  per- 
sons or  property  control  in  all  cases  arising,  in 
these  nations,  during  the  life  of  the  treaty.    An 
example  is  the  case  of  one  Yaker.    At  the  time 
of  his  death,  in  1853,  in  Kentucky,  he  possessed 
real  estate   there,   but   was   an   alien,   born   in 
Switzerland,  never  having  become  an  American 
citizen.     By  the  treaty  of  1850,  with  Switzer- 
land,' a  citizen  of  his  own  country  and  his  heirs 
were  entitled  to  his  estate  precisely  as  if  it  were 
in  that  country.    By  this  treaty  the  alienage  of 
Yaker  afforded  no  cause  for  Kentucky  to  con- 
fiscate his  property,  or  in  any  way  to  deflect  it 
from  its  lawful  course  to  his  heirs. ^    Had  there 
been  no  treaty  "made  pursuant  of  the  authority 
of  the  United  States"  between  our  country  and 
Switzerland,  Yaker's  property  would  have  passed 
according   to   the  law   of   Kentucky, — i.e.,  not 
according  to  what  may  be  called  positive  inter- 
national law. 

6.     The    basis    of    international    law    is    the 

•  11  Statutes-at-large,  587. 

'  Honer  v.  Yaker,  9  Wallace  32  (1869).  See  also  The  People  ex  rel. 
The  Attorney-General  v.  Gcrke,  5  Cal.  381  (1855);  Head  Money 
Cases,  112  U.S.  580(1884). 


International  Relations  i37 

necessity  of  relations, — peaceful,  hostile,  com- 
mercial, ethical,  political, — between  nations.  In 
brief,  the  United  States  is  a  Nation,  and  there- 
fore has  such  relations.  In  other  words,  the 
United  States  as  a  Nation  is  a  subject  of  in- 
ternational law,  a  party  (one  might  say  a 
natural  party)  to  such  law.  The  Nation  is  a 
State  precisely  as  that  word  is  used  in  the  Con- 
stitution in  the  expression  "foreign  States.'" 
But  as  a  subject  of  international  law  the  United 
States  is  no  more,  no  less  a  "state"  than  is  any 
other,  be  it  as  vast  as  Russia,  or  as  small  as 
Panama.  As  a  subject  of  international  law  the 
United  States  is  concerned  as  to  its  existence  and 
continuity;  its  rights,  duties, and  responsibilities. 
7.  As  an  international  power,  the  United 
States  considers  its  own  interests  and  those 
of  other  powers,  and  those  of  the  whole 
world.  As  an  international  power,  the  United 
States,  through  President  Harding,  called  the 
Disarmament  Conference  at  Washington,  in 
November,  1921.  The  call  came  from  the 
United  States, — was  given  to  such  powers  as  the 
United  States  believed  it  expedient  to  call  for 
the  purpose  proposed.     The  particular  powers  so 

'Art.  III.,  §2:  1. 


1 38  Essentials  of  American  Government 

invited  to  attend  were  powers  whom,  by  reason 
of  circumstances,  the  United  States  beheved 
could  best  effect  the  end  desired, — the  reduction 
of  armaments.  The  United  States  has  not  power 
to  compel  such  reduction. 

8.  There  can  be  no  contract  between  a  Na- 
tion, and  an  American  Commonwealth.  There 
is  no  world  power  that  can  compel  world-obedi- 
ence to  its  will  because  of  any  world-constitution 
of  government.  The  Constitution  of  Nevada 
provides  that: 

The  Constitution  of  the  United  States  confers  full 
power  on  the  federal  Government  to  maintain  and  per- 
petuate its  existence,  and  whensoever  any  portion  of  the 
States,  or  people  thereof,  attempt  to  secede  from  the 
federal  Union,  or  forcibly  resist  the  execution  of  its  laws, 
the  federal  Government  may,  by  warrant  of  the  Consti- 
tution, employ  armed  force  in  compelling  obedience  to 
its  authority. ' 

The  Constitution  of  Mississippi  provides, 
that : 

The  right  to  withdraw  from  the  federal  Union  on  ac- 
count of  any  real  or  supposed  grievance,  shall  never  be 
assumed  by  this  State,  nor  shall  any  law  be  passed  in 
derogation  of  the  paramount  allegiance  of  the  citizens  of 
this  State  to  the  government  of  the  United  States.^ 

•  1864.     Declaration  of  Rights,  Art.  I.,  2. 

»  1890.     Bill  of  Rights.  Art.  III.,  §  7.    See  also  §  6. 


International  Relations  i39 

9.  The  Constitution  of  Maryland,  of  1864, 
provided  that: 

The  Constitution  of  the  United  States  and  the  laws 
made  in  pursuance  thereof  being  the  supreme  law  of  the 
land,  every  citizen  of  this  State  owes  paramount  allegiance 
to  the  Constitution  and  Government  of  the  United 
States.^ 

The  constitutions  of  Nevada  and  Maryland 
were  adopted  amidst  the  stress  of  civil  war ;  that 
of  Mississippi,  in  time  of  peace.  Undoubtedly 
the  authority  and  the  allegiance  here  recognized 
are  fundamental  in  American  government, 
though  at  no  other  time  and  nowhere  else  so 
expressed  by  an  American  constitution.  The 
essential  idea  here  is  that  of  recognition  of 
national  sovereignty. 

10.  The  objects  of  international  law  are 
territorial  domain,  boundaries,  territorial  waters, 
the  high  seas,  aerial  space  and  citizens  or  sub- 
jects. By  international  law  the  relations  be- 
tween the  United  States  and  other  nationals  are 
determined,  such  as  the  rights  and  duties  of 
diplomatic  agents,  of  consuls,  of  international 
conferences,  or  tribunals  and  the  meaning  of 
treaties.     The  power  to  declare  and  wage  war 

»  Declaration  of  Rights,  Art.  V. 


140  Essentials  of  American  Government 

rests  wholly  with  the  Nation  through  Congress.^ 
The  expediency  of  war  is  a  wholly  different 
matter.  Thus  methods  of  warfare  are  largely 
national  methods,  but  international  law  is  ap- 
pealed to  as  to  lawful  or  unlawful  methods.  A 
nation  may  preserve  neutral  rights, — the  ques- 
tion of  neutrality  being  one  determined  and 
settled  by  judicial  decisions.^ 

11.  As  treaties  made  by  authority  of  the 
United  States  are  a  part  of  the  "Supreme  Law  of 
the  Land, "  the  rights,  privileges,  and  immunities 
of  persons  may  be  affected  by  them, — whence 
"private  international  law."  But  whether  inter- 
national law  be  involved,  as  public  or  private,  the 
issue  is,  distinctively,  a  national,  or  federal  issue. 
The  United  States  has  jurisdiction  in  the  case,  or 
is  a  party  to  the  case,  or  is  in  some  way  involved. 
The  case  is  not  a  Commonwealth  case.  The 
ideas  which  underlie  modern  international  law 
are  ideas  of  World-Unity.  This  lofty  notion  is 
not  peculiar  to  our  age.  The  ideas  and  prin- 
ciples of  some  such  unity  may  be  discerned  in 

'  Art  I.,  §  8:  11. 

'  The  principal  compilation  on  the  subject  is  Dr.  James  Brown 
Scott's  Cases  on  International  Law  Selected  from  Decisions  of  English 
and  American  Courts.  (A  valuable  "Syllabus"  practically  classifies 
these  cases.) 


International  Relations  141 

other  ages.    They  may  be  said  to  be  the  guiding- 
star  of  statesmen.^ 

'  Standard  textbooks  in  international  law  may  be  consulted  for 
details.  A.  S.  Hershey's,  The  Es.ientials  of  International  Public  Law, 
gives  twenty-eight  pages  to  its  "List  of  Authorities."  Other  valu- 
able treatises  are  by  Hannis  Taylor,  Wilson,  Davis,  Stockton,  Tucker, 
Wheaton,  Westlake,  Walker,  Lawrence,  Halleck,  Ferguson — (and 
especially)  the  American  Journal  of  International  Law,  and  J.  B. 
Moore's  monumental  work,  A  Digest  of  International  Law,  8  vols. 
Washington  (Government  Printing  Office). 

The  instructor  may  advantageously  bring  before  the  class  current 
literature  on  important  conferences,  congresses,  international  events 
(as  in  commerce,  diplomacy),  also  "Memoirs"  by  persons  who  have 
been  in  the  diplomatic  service  (e.  g.,  J.  W.  Foster's);  Consular  "Re- 
ports"; publications  of  the  Carnegie  Peace  Foundation.  Current 
publication  of  international  law  material  is  listed  extensively  in 
The  American  Political  Science  Review.  If  we  turn  to  the  past,  to  the 
history  of  Europe,  the  idea  of  a  World-Union  may  be  traced  in  St. 
Augustine  {De  Civitate  Dei),  in  Macchiavelli  {Le  Principe),  in  Cavour; 
of  a  domination,  in  Napoleon,  in  Prussianism  as  seen  in  the  recent 
World  War.  And  at  present,  in  peaceful  agreement  among  nations 
by  amicable  conference,  based  upon  "common  counsel,  mediation, 
administration,  and  judicial  determination  in  controversies."  (Presi- 
dent Harding  in  Message,  December  1,  1921.)  A  very  large  (perhaps 
the  largest)  question  (problem)  in  modern  international  law  is  to 
reconcile  individual  state  (national)  sovereignty  with  (one)  world- 
sovereignty. 


CHAPTER  XV 

THE    PRINCIPLES   OF   AMERICAN    GOVERNMENT 

1 .  The  principle  at  the  foundation  of  govern- 
ment in  America,  national,  State,  local,  is  that  of 
representation.  This  principle  is  involved  in 
that  provision  of  the  Constitution  that  the 
United  States  guarantees  to  each  State  a  republi- 
can form  of  government.^  But  the  guarantee  is 
limited  to  States  "in  this  Union."  Such  a 
government  is  not  guaranteed  to  Territories,  or 
to  outlying  possessions.  Over  the  territory  or 
property  of  the  United  States  the  Congress  has 
power  "to  make  all  needful  rules, "^  or,  if  it 
chooses,  "to  dispose  of"  such  territory.  Thus 
the  Congress  could,  in  the  exercise  of  its  powers 
sell,  mortgage,  or  trade  off  Alaska,  Porto  Rico, 
or  the  Philippines.  Grave  apprehensions  have 
been  expressed  in  certain  quarters,  lest  the 
Congress  exact  unjust  and  oppressive  legislation 
affecting   the   territory   or   possessions   of   the 

»  Art.  IV.,  §  4.  «  Art.  IV.,  §  2. 

142 


Principles  of  American  Government  143 

United  States,  but  such  fears  find  no  justification 
in  our  history.  "There  are  certain  principles  of 
natural  justice  inherent  in  the  Anglo-Saxon 
character,  which  need  no  expression  in  constitu- 
tions or  statutes  to  give  them  effect  or  to  secure 
dependencies  against  legislation  manifestly  hos- 
tile to  their  real  interests.'"' 

2.  This  means  that  the  principles  on  which 
American  government  is  founded  always  work 
justice.  "To  establish  justice^*  is  the  supreme, 
the  sole  end  and  purpose  of  government,  not 
only  in  America,  but  everywhere, — if  men  live 
up  to  the  essential  principles  of  life. 

3.  But  what  of  the  form  of  government? 
Ours,  in  its  every  aspect,  is  "republican"  (repre- 
sentative) in  form.  Indeed,  in  all  our  constitu- 
tions we  emphasize  the  importance  of  the  form 
of  government.  And  here  appears  the  recogni- 
tion of  the  mechanics  of  government, — the 
system  of  "checks  and  balances,"  as  it  was 
familiarly  called  early  in  our  history.^  By  this 
system,  while  the  executive  functions  delegated 
by  the  people  are  conceived  as  distinct  from  the 
legislative  and  the  judicial;  the  legislative  dis- 

I  Downes  v.  Bidwell,  182  U.  S.  244  (1901). 
»  As  in  the  Federalist  (1788). 


144  Essentials  of  American  Government 

tinct  from  the  executive  and  the  judicial;  the 
judicial  distinct  from  the  executive  and  the 
legislative,  "that  it  may  be  a  government  of 
laws  (principles)  not  of  men,"  yet  the  three 
functions  cooperate  as  a  unit,  and  each  works 
as  a  check  on  the  other. 

This  nice  balancing,  yet  cooperation  of  parts, 
characterizes  American  government  whether 
local.  State,  or  federal. 

4.  The  laws  are  made  by  the  legislative 
power, — the  Congress,  the  State  Legislature,  the 
city  Council.  But  the  Mayor,  the  Governor,  the 
President,  participates  in  the  act  by  approving  or 
disapproving  the  proposed  measure;  and  "it  is 
the  province  and  the  duty  of  the  Court  to  say 
what  the  law  is." 

5.  Administration  is  identified  in  some  way 
with  the  executive,  the  legislative,  the  judicial, — 
one,  or  two,  or  all.  At  the  foundation  are  the 
people  of  the  United  States,  the  people  of  a 
State,  the  people  of  a  local  jurisdiction  (city, 
town,  borough,  county,  township), — who,  di- 
rectly or  indirectly,  elect  a  person  (or  persons) 
to  represent  them  in  an  office  {i.e.,  a  function) 
legislative,  executive,  judicial,  or  administrative. 

6.     If  the  executive  is  malfeasant  in  office,  he 


Principles  of  American  Government   i45 

is  subject  to  investigation,  trial,  impeachment, 
conviction,  removal  from  office  by  operation  of 
law  at  the  instance  of  the  Legislature.  If  the 
judge  is  malfeasant,  he  is  subject  in  like  manner. 
If  the  legislator  is  malfeasant,  he  is  subject  to 
investigation  by  his  fellow  legislators, — to  trial 
before  a  Court  (the  judiciary),  and,  not  least  to 
retirement  at  the  hands  of  the  people  at  the 
polls.  For  it  is  the  people  themselves  who  are 
the  grand  "check  and  balance"  in  government, 
in  America. 

7.  The  principle  of  representation  includes 
all  the  fundamentals  of  government  in  the 
American  system.  Thus  economy,  efficiency, 
protection,  peace,  prosperity, — indeed  all  the 
interests  and  activities,  the  conditions  and  quali- 
ties sought  in  government  are  sought  in  and  by 
application  of  this  principle. 

8.  Such  realization  of  justice  is  sought, — for 
example : 

(1)  By  open,  fair  and  frequent  elections. 

(2)  By  limitation,  by  the  people,  of  all  powers 
granted  by  them  to  their  representatives,— a 
limitation,  or  reservation  of  powers  fully  ex- 
pressed by  the  Tenth  Amendment. 

(3)  By  adherence  to  ''majority  rule." 


14^  Essentials  of  American  Government 

(4)  By  graduating  taxation  according  to 
resources.^ 

(5)  By  maintaining  between  the  States  and 
the  United  States,  what  Lincoln  called  "proper 
practical  relations.'" 

(6)  By  distinguishing  at  all  times  between 
permanent  and  temporary  interests/ 

(7)  By  securing,  maintaining,  and  ever  exer- 
cising a  morality  essential  to  the  establishing  of 
justice. 

9.  In  order  to  establish  justice,  by  and 
through  a  representative  form  of  government 
such  as  ours,  the  people  ordain  and  establish 
constitutions,  enact  laws,  and  render  decisions. 

Obviously  many  millions  of  people  cannot 
themselves  do  this, — it  must  be  done,  if  at  all,  by 
delegates  elected  for  the  special  purpose. 

10.  To  what  extent  the  republican  form  of 
government  may  be  carried,  geographically,  is 
not  known.  Montesquieu,  the  most  eminent 
political  writer  of  the  eighteenth  century,  as- 
serted in  his  Spirit  of  Laws  that  a  confederated 
republic  (such  as  ours)  cannot  extend  over  a 
large  area  because  of  jealousies  inevitable  among 

'  See  the  Federalist,  No.  XXX. 

»  Last  public  address,  April  11,  186a,  Works   (Century  Ed.),  ii.,  674. 

3  Federalist,  No.  LXIII. 


Principles  of  American  Government  147 

the  confederating  States  which  will  constantly 
tend  to  limit  the  extent  of  its  jurisdiction/ 
Madison,  explaining  our  American  system,^ 
replied  fully  to  Montesquieu, — distinguishing 
between  "a  mere  consolidation  of  States  and  a 
Union  of  States  upon  the  principle  of  representa- 
tion." 

11.  Whether  this  principle  can  be  applied  in 
a  republic  of  the  nations,  a  federation  of  the 
world, — or,  as  Tennyson  expresses  it, — "a  par- 
liament of  man,"  is  a  problem  which  civilization 
alone  can  solve. 

12.  At  present  the  supreme  difficulty  is  the 
sovereignty  of  the  several  nations.  For  example, 
the  sovereignty  of  the  United  States  is  exercised 
by  its  exclusive  right  (through  the  Congress)  to 
coin  money,  or  to  declare  war.  Like  sovereign 
powers  are  in  every  other  nation.  Were  the 
nations  of  the  earth  to  form  a  Federal  Union, 
what  becomes  of  these  present  sovereign  powers  .^^ 
Is  any  nation  willing  and  ready  to  surrender 
these?  Is  it  possible  to  establish  federal  rela- 
tions between  the  present  several  sovereign 
nations  and  some  Supreme  Union  of  all  nations, 

'  The  Spirit  of  Laws,  Bk.  IX.,  Cb.  i. 
'  Federalist,  No.  XIV. 


14S  Essentials  of  American  Government 

— placing  each  present  nation  in  "proper,  prac- 
tical relations"  (federal  relations)  to  the  World- 
Republic? 

13.  The  type,  or  model  for  such  a  republic  is 
the  United  States  to  which  the  several  nations 
would  stand  in  such  federal  relations  as  the 
several  States  in  the  American  Union  stand  to 
the  United  States.' 

14.  If  ever  such  a  World-Republic,  or  Empire, 
comes  into  existence,  it  will  come  by  application 
of  the  principle  of  representation.^ 

'  This  is  the  subject  of  the  immense  literature  about  a  "League  of 
Nations."  See  especially  vol.  iv..  No.  4,  August,  1921,  A  League  of 
Nations,  World  Peace  Foundation,  40  Mt.  Vernon  Street,  Boston, 
Mass.  Also,  International  Conciliation,  407  W.  117th  Street,  New 
York  City.  Especially  No.  169,  The  Washington  Conference  on  the 
Limitation  of  Armaments. 

'  The  Hague  Tribunals,  the  League  of  Nations,  the  Disarmament 
Conference,  all  Arbitration  Conferences  in  which  a  nation  is  a  party, 
are  monuments  toward  the  realization  of  a  world  republic.  The 
principles  of  American  government  are  the  main  theme,  in  one  form 
or  another,  of  every  publication  on  the  subject.  It  might  seem,  at 
first  thought,  that  all  nations  might  federate,  on  the  principle  of 
representation,  with  respect  to  the  three  fundamentals  mentioned  by 
Jefferson:  "Life,  liberty,  and  the  pursuit  of  happiness."  This  were 
easier  if  the  several  nations  agreed  as  to  these  fundamentals.  Differ- 
ences of  race,  climate,  institutions,  customs,  law, — ideas  (in  brief) 
are  obstacles  in  the  way  of  a  world-republic.  Whatsoever  removes, 
or  tends  to  remove  or  overcome  these  obstacles,  contributes  toward 
the  formation  of  a  world-republic.  An  instructor  may,  advantage- 
ously, call  attention  to  the  facts  presented  by  history, — facts  as  to 
ethics,  religion,  politics,  law,  economics,  sociology,  etc.  Examples 
abound  at  the  present  time. 


APPENDIX 

I.  A  Word  About  the  Books. 

II.  The  Constitution  of  the  United  States. 

III.  Cases  Cited. 

IV.  Index. 

I.     A  Word  About  the  Books 

Books  on  government  are  documents,  comments  on 
documents,  or  both.  Of  books  strictly  documentary  the 
instructor  or  general  reader  may  not  make  use.  Yet 
there  are  notably  helpful  books,  chiefly  of  the  third 
group,  also  reprints  of  documents  with  notes  and  biblio- 
graphies. 

1.  The  Constitution  and  Organic  Laws  of  the  United 
States,  7  vols.  Edited  by  Francis  N.  Thorpe,  published 
by  the  Federal  Government,  1909.  This  work  reprints  the 
State  constitutions  down  to  1907;  the  enabling  Acts  for 
the  States;  the  Acts  creating  the  Territories,  and  many 
colonial  charters.  It  contains  no  comments,  but  gives  a 
bibliography  of  the  constitutions.  The  Constitution  of 
the  United  States  (available  from  the  Government  and 
accessible  in  many  reprints)  finds  official  interpretation 
in  the  "Reports"  of  the  Supreme  Court  of  the  United 
States, — some  £30  octavo  volumes.  The  decisions  of 
essential  importance  are  compiled  (usually  with  brief 
bibliographical  notes)  in  several  editions  of  (so-called) 
"leading  cases," — commonly  known  as  "Case  Books"  of 
which   McClain's,  Thayer's,   Hall's,  Wombaugh's,   and 

149 


150  Appendix 

Boyd's  are  well  knov/n.  The  title  is  usually  Cases  on 
Constitutional  Law,  and  the  work  is  in  one  volume. 
(Thayer's  in  several,  according  to  the  edition.) 

Federal  (and  some  State)  documentary  matter  of 
great  value  in  the  study  of  American  government  is 
reprinted  and  edited  by  William  Macdonald  in  his 
Documentary  Source  Book  of  American  History,  1606- 
1898;  and  in  his  Select  Documents  Illustrative  of  the  History 
of  the  United  States  1776-1861,— both,  volumes  amply 
supplied  with  bibliographies,  and  explanatory  notes. 

Of  similar  editorial  character  is  H.  V.  Ames's  State 
Documents  on  Federal  Relations,  States  and  the  United 
States.  H.  W.  Preston's  Documents  Ulustrative  of  Amer- 
ican History,  1606-1SG3,  tcith  Introductions  and  Refer- 
ences, belongs  to  this  group  of  books.  James  D.  Richard- 
son's A  Compilation  of  the  Messages  and  Papers  of  the 
Presidents,  1789-1897,  10  vols,  (pubhshed  by  authority 
of  Congress),  is  the  available  source  of  its  kind.  The 
"messages  and  papers"  later  than  1897  (but  not  down  to 
date)  have  also  been  compiled.  Richardson  has  also 
compiled  a  similar  collection  of  C.  S.  A.  documents. 

The  treaties  to  which  the  United  States  is  a  party  are 
reprinted,  down  to  1910,  in  Treaties,  Conventioris,  Inter- 
national Acts,  Protocols  and  Agreements  Between  the  United 
States  of  America  and  Other  Powers,  1776-1909,  2  vols., 
1776-1909,  compiled  by  W.  M.  Malloy ;  Senate  Document, 
No.  357,  61st  Congress,  2d  Session;  Vol.  III.,  compiled  by 
G.  Charles  (supplement  to  Senate  Document,  No.  357, 
1913).  (Treaties  since  1913  will  be  found  in  The  Congres- 
sional Record  of  the  date  of  the  treaty.)  Of  books  con- 
sisting essentially  of  comments  on  American  Government 
(as  of  documents),  the  number  is  great  and  all  which 
survive  are  of  value. 

First  among  these  is  the  Federalist  (1788),  essays  on  the 
(then)  proposed  FederalGovernment,  by  Hamilton,  Madi- 


Appendix  151 

son,  and  Jay.  H.  C.  Lodge's  edition  contains  a  critical 
essay  on  the  authorship  of  the  papers;  P.  L.  Ford's  edi- 
tion has  a  bibhography,  notes,  and  additional  documen- 
tary matter.    Ford's  index  is  of  great  help. 

Alexis  de  Tocqueville's  Democracy  in  America,  2  vols., 
1835  (many  editions, — i.e.,  translations  from  the  French), 
describes  the  United  States,  its  people,  their  government 
and  institutions  as  they  were  down  to  the  year  of  its 
composition.  This  classic  work  is  now  historical.  Its 
philosophical  character  has  long  been  acknowledged. 
It  emphasizes  {inter  alia)  the  "town  meeting." 

James  Bryce's  American  Commomvealth,  2  vols,,  1888 
(later  editions;  also  in  one  volume),  resembles  De  Toc- 
queville's work  in  being  descriptive,  philosophical,  and 
readable.  It  was  written  with  emphasis  of  the  merits  of 
the  British, — the  "Cabinet"  system  of  representative 
government. 

Of  strictly  technical  treatises  on  our  national  govern- 
ment (the  Constitution  especially),  Joseph  Story's  Com- 
mentaries on  the  Constitution  (1833)  (later  editions;  a 
standard  work);  Thomas  M.  Cooley's  Constitutional 
Limitations,  and  his  General  Principles  of  Constitutional 
Law  in  the  United  States  of  America  (1880)  (later 
editions);  and  W.  M.  Willoughby's  American  Constitu- 
tional Law,  2  vols.  (1920),  are  the  principal. 

Lalor's  Cyclopcedia  of  Political  Science,  Political  Econ- 
omy and  United  States  History  (3  vols. ;  revised  edition)  is 
a  treasury  of  information,  containing  information  on 
all  important  governmental  issues  in  our  history;  also 
Hart  and  McLaughlin's  Cyclopcedia  of  American  Govern- 
ment. 

President  F.  J.  Goodnow's  Comparative  Administrative 
Law  (1893,  2  vols.;  edition  in  one  volume  also)  and  his 
American  Administrative  Law  remain  the  standard 
treatises  on  the  subject. 


152  Appendix 

The  works  in  American  history  and  biography  are 
numerous.  Of  a  documentary  nature  are  the  Works  or 
Writings  of  American  statesmen,  comprising  some  200 
volumes.  The  American  Statesmen  series  consist  of  brief 
biographies  of  the  most  eminent  pubHc  men  in  our 
history.  The  True  Series  of  American  statesmen  need 
not  be  ignored.  W.  G.  Sumner's  Alexander  Hamilton 
may  be  read  in  course  with  Senator  Lodge's  Hamilton 
of  the  American  Statesmen  series.  W.  B.  Munro's  The 
Government  of  American  Cities  also  his  Government  of  the 
United  States  (textbooks)  are  masterly  works.  J.  P. 
Cotton's  Constitutional  Decisions  of  John  Marshall  (2 
vols.,  1905;  with  notes)  gives  easy  access  to  the  govern- 
mental principles  of  the  great  Chief-Justice. 

American  history  supplies  innumerable  illustrations 
and  examples  of  the  principles  of  American  government 
applied.  There  is  no  one  work,  of  an  historical  nature, 
v/hich  narrates  the  applications  of  these  principles  of 
government  during  the  whole  life  of  the  Nation.  The 
references  by  editors  of  our  important  state  papers  (docu- 
ments) usually  indicate  where  detailed  narratives  con- 
cerning the  matter  may  be  found.  Bancroft's  histories 
stop  with  the  inauguration  of  Washington;  Hildreth, 
with  the  Missouri  Compromise,  1492-1820;  McMaster, 
1787-1861,  with  the  Civil  War;  Schouler,  1783-1876,  with 
the  Centennial;  Rhodes,  1850-1888,  with  Cleveland's 
Administration;  Adams,  1801-1817,  with  the  accession 
of  Monroe.  There  are  special  histories  of  the  making  of 
the  Constitution  [Bancroft,  Curtis  (both  strictly  of  the 
formation  of  the  Constitution, — though  Curtis's  (last 
edition)  includes  some  later  questions) ;  Thorpe  (narrates 
the  constitutional  history  of  the  United  States  to  the 
adoption  of  the  Fifteenth  Amendment — see  also  his  Con- 
stitutional History  of  the  American  People,  1776-1850,  2 
vols.,  a  narrative  of  State  Constitutions  and  govern- 


Appendix  i53 

ment].  For  histories  of  issues,  movements,  particular 
events,  consult  Hart's  Guide  to  American  History  (last 
edition). 

Of  great  value  are  current  publications  (newspapers, 
magazines,  pamphlets,  &c.)  such  as  The  American  Political 
Science  Revieio  (each  number  contains  valuable  bibli- 
ography of  current  publications  in  the  field  of  govern- 
ment); The  Annals  of  the  American  Academy;  The  North 
American  Review;  The  Political  Science  Quarterly;  the 
Law  Journals  (Harvard,  Yale  Review,  Boston,  American 
Bar  Association  Journal;  Journal  of  International  Law, 

&c.).^ 

Of  primary  value  in  international  law  studies  is 
Scott's  Cases  on  International  Law.  Relevant  articles  in 
the  encyclopeedias  (American,  Britannica)  usually  con- 
clude with  a  bibliography  leading  to  quite  all  the  authori- 
ties. 

In  the  footnotes  in  the  present  volume  references  and 
citations  are  made  to  the  principal  writings  on  the  subject 
in  hand.  The  subject  "government"  is  quite  inexhaust- 
ible. In  the  present  volume  American  government  is  the 
chief  theme  and  of  this  government,  federal.  State,  and 
local  (city)  the  essentials,  or  fundamental  principles  are 
considered.  Books  of  special  value  in  the  study  of 
American  government,  include, — Alexander  Johnston's 
(Edited)  Representative  American  Orations,  which  illus- 
trate American  Political  History  (new  edition,  4  volumes, 
by  J.  A.  Woodburn);  Charles  W.  Bacon  and  F.  S.  More's 

'  The  instructor  may  advantageously  bring  to  the  class  The  Con- 
gressional Record  or  the  State  Legislative  Record — in  order  to  present 
the  course  of  important  current  discussions.  The  Congressional 
Record  contains  sooner  or  later  some  account  of  quite  every  interest 
of  the  American  people.  Decisions  of  the  Supreme  Court  of  the  Uni- 
ted States  are  available  shortly  after  they  are  rendered;  new  "Trea- 
ties" are  printed  in  The  Congressional  Record,  as  they  are  made. 


154  Appendix 

American  Plan  of  Government;  J.  H.  Dougherty's  Elec- 
toral Sijstem  of  the  United  States,  and  Power  of  the  Federal 
Judiciary  Over  Legislation;  the  Lincoln-Douglas  De- 
bates (various  editions;  see  Putnam's);  A.  H.  Snow's 
The  American  Philosophy  of  Government;  E.  G.  Scott's 
Constitutional  Liberty;  William  D.  Foulke's  Fighting  the 
Spoilsmen  (concerning  the  Civil  Service);  J.  A.  Wood- 
burn's  The  American  Republic  and  Its  Government,  and 
Political  Parties  and  Party  Problems  in  the  United  States; 
and  the  Writings  or  Works  of  American  Statesmen, — 
notably  Hamilton's  and  Jefferson's,  {Hamilton  edited 
by  Lodge ;  Jefferson,  by  Ford) .  M.  M.  Miller's  American 
Debates;  E.  G.  Elliott's  Biographical  Story  of  the  Constitu- 
tion; O.  S.  Straus's  Origin  of  Republican  Government  in 
the  United  States. 

After  all,  the  measure  of  success  in  class  rests  with  the 
instructor.  To  him  or  her  we  there  at  last  come.  The 
living  voice  surpasses  the  mere  textbook  in  informing 
power.  The  knowledge  and  the  spirit  of  the  instructor 
determine  the  character  of  the  work  done  by  the  class 
and  largely  fix  the  boundaries  as  well  as  the  standards  of 
thinking  by  the  class,  at  the  time,  and  later.  The  rule 
should  be  Multum,  not  Multa. 


APPENDIX  II 

THE 
CONSTITUTION 

OF   THE 

UNITED  STATES  OF  AMERICA 

(Compared  with  the  Original  in  the  Department 
OF  State) 

WE  THE  PEOPLE^  of  the  United  States,  in  Order  to 
form  a  more  perfect  Union,  establish  Justice,  insure 
domestic  TranquiUty,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Blessings 
of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE  I. 

Section  I. 

1 .  All  legislative  Powers  herein  gra  nted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of 
a  Senate  and  House  of  Representatives. 

Section  2. 

1.  The  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of  the 

'  In  the  original  the  clauses  are  not  numbered,  nor  is  there  any 
title  to  the  document.     It  begins,  "  We  the  People." 

155 


156  Appendix 

several  States,  and  the  Electors  in  each  State  shall  have 
the  Qualifications  requisite  for  Electors  of  the  most 
numerous  Branch  of  the  State  Legislature. 

2.  No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty -five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

3.  'Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Numbers, 
which  shall  be  determined  by  adding  to  the  whole  Num- 
ber of  free  Persons,  including  those  bound  to  Service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three 
fifths  of  all  other  Persons.  The  actual  Enumeration  shall 
be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent Term  of  ten  Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Representatives  shall  not  ex- 
ceed one  for  every  thirty  Thousand,  but  each  State  shall 
have  at  Least  one  Representative;  and  until  such  enumer- 
ation shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  chuse  three,  Massachusetts  eight,  Rhode 
Island  and  Providence  Plantations  one,  Connecticut  five. 
New  York  six.  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten.  North  Carolina 
five.  South  Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  Representation 
from  any  State,  the  Executive  Authority  thereof  shall 
issue  Writs  of  Election  to  fill  such  Vacancies. 

5.  The  House  of  Representatives  shall  chuse  their 
Speaker  and  Other  Officers;  and  shall  have  the  sole  Power 
of  Impeachment. 

»  See  Amendments  XIII.,  XIV.,  XV..  XVI. 


Appendix  i57 

Section  3. 

1.  'The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legisla- 
ture thereof,  for  six  Years;  and  each  Senator  shall  have 
one  Vote, 

2.  Immediately  after  they  shall  be  assembled  in 
Consequence  of  the  first  Election,  they  shall  be  divided 
as  equally  as  may  be  into  three  Classes.  The  Seats  of 
the  Senators  of  the  first  Class  shall  be  vacated  at  the 
Expiration  of  the  second  Year,  of  the  second  Class  at 
the  Expiration  of  the  fourth  Year,  and  of  the  third  Class 
at  the  Expiration  of  the  sixth  Year;  so  that  one  third 
may  be  chosen  every  second  Year;  and  if  Vacancies 
happen  by  Resignation  or  otherwise,  during  the  Recess  of 
the  Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

3.  No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 

5.  The  Senate  shall  chuse  their  other  Officers,  and 
also  a  President  pro  tempore  in  the  Absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  Office  of  President 
of  the  United  States. 

6.  The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief  Justice  shall  preside: 

'  See  Amendment  XVII.    . 


158  Appendix 

And  no  Person  shall  be  convicted  without  the  Concur- 
rence of  two  thirds  of  the  Members  present. 

7.  Judgment  in  Cases  of  Impeachment  shall  not 
extend  further  than  to  removal  from  Office,  and  dis- 
qualification to  hold  and  enjoy  any  Office  of  honor, 
Trust,  or  Profit  under  the  United  States:  but  the  Party 
convicted  shall,  nevertheless,  be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  according 
to  Law. 

Section  4. 

1.  The  Times,  Places  and  Manner  of  holding  Elections 
for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof;  but  the  Congress 
may  at  any  time  by  Law  make  or  alter  such  Regulations, 
except  ds  to  the  Places  of  chusing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different 
Day. 

Section  5. 

1.  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quorum  to  do  Busi- 
ness: but  a  smaller  Number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  Attendance  of 
absent  Members,  in  such  Manner,  and  under  such 
Penalties  as  each  House  may  provide. 

2.  Each  House  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  disorderly  Behavior, 
and,  with  the  Concurrence  of  two  thirds,  expel  a  Member. 

3.  Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy;  and  the 


Appendix  i59 

Yeas  and  Nays  of  the  Members  of  either  House  on  any 
question  shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

4.  Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  Place  than  that  in 
which  the  two  Houses  shall  be  sitting. 

Section  6. 

1.  The  Senators  and  Representatives  shall  receive  a 
Compensation  for  their  Services,  to  be  ascertained  by 
Law,  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall  in  all  Cases,  except  Treason,  Felony  and 
Breach  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses 
and  in  going  to  and  returning  from  the  same;  and  for  any 
Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

2.  No  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any  civil 
Office  under  the  Authority  of  the  United  States,  which 
shall  have  been  created,  or  the  Emoluments  whereof 
shall  have  been  increased  during  such  time;  and  no 
Person  holding  any  Office  under  the  United  States,  shall 
be  a  member  of  either  House  during  his  Continuance  in 
Office. 

Section  7. 

1.  All  Bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

2.  Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
Law,  be  presented  to  the  President  of  the  United  States; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 


i6o  Appendix 

with  his  Objections,  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Reconsideration  two  thirds  of  that  House  shall  agree  to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objec- 
tions, to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  })y  two  thirds  of  that  House 
it  shall  become  a  Law.  But  in  all  such  Cases  the  Votes 
of  both  Houses  shall  be  determined  by  Yeas  and  Nays, 
and  the  Names  of  tlie  Persons  voting  for  and  against 
the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the 
President  within  ten  Days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  Same  shall  be  a 
Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  Adjournment  prevent  its  Return,  in 
which  Case  it  shall  not  be  a  Law. 

3.  Every  Order,  Resolution,  or  Vote  to  which  the 
Concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjournment), 
shall  be  presented  to  the  President  of  the  United  States; 
and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  Rules  and  Limitations  prescribed  in  the 
Case  of  a  Bill. 

Section  8. 

1.  The  Congress  shall  have  Power  to  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 
and  provide  for  the  common  Defence  and  general  Welfare 
of  the  United  States;  but  all  Duties,  Imposts  and  Excises 
shall  be  uniform  throughout  the  United  States; 

2.  To  borrow  Money  on  the  credit  of  the  United 
States; 


Appendix  i6i 

3.  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes ; 

4.  To  establish  a  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States; 

5.  To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures; 

6.  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States; 

7.  To  establish  Post-Offices  and  Post  Roads; 

8.  To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors 
the  exclusive  Right  to  their  respective  Writings  and 
Discoveries; 

9.  To  constitute  Tribunals  inferior  to  the  Supreme 
Court ; 

10.  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations; 

11.  To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on  Land 
and  Water; 

12.  To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than 
two  Years; 

13.  To  provide  and  maintain  a  Navy; 

14.  To  make  Rules  for  the  Government  and  Regula- 
tion of  the  land  and  naval  Forces; 

15.  To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions; 

16.  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United  States, 

17 


i62  Appendix 

reserving  to  the  States  respectively,  the  Appointment 
of  the  OflBcers,  and  the  Authority  of  training  the  Mihtia 
according  to  the  disciphne  jjrescribed  by  Congress; 

17.  To  exercise  exckisive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and  the 
Acceptance  of  Congress,  become  the  Seat  of  the  Govern- 
ment of  the  United  States,  and  to  exercise  like  Authority 
over  all  Places  purchased  by  the  Consent  of  the  Legisla- 
ture of  the  State  in  which  the  Same  shall  be,  for  the 
Erection  of  Forts,  Magazines,  Arsenals,  dock- Yards, 
and  other  needful  Buildings; — And 

18.  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department 
or  Officer  thereof. 

Section  9. 

1.  The  Migration  or  Importation  of  such  Persons  as 
any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  Year  one  thousand  eight  hundred  and  eight,  but  a 
Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person. 

2.  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 

3.  No  Bill  of  Attainder,  or  ex  post  facto  Law  shall  be 
passed. 

4.  No  Capitation  or  other  direct  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration  herein 
before  directed  to  be  taken. 

5.  No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 


Appendix  163 

6.  No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another:  nor  shall  Vessels  bound  to,  or  from,  one 
State,  be  obliged  to  enter,  clear,  or  pay  Duties,  in  another. 

7.  No  money  shall  be  drawn  from  the  Treasury,  but  in 
Consequence  of  Appropriations  made  by  Law;  and  a 
regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

8.  No  Title  of  Nobility  shall  be  granted  by  the  United 
States:  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present.  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or 
foreign  State. 

Section  10. 

1.  No  State  shall  enter  into  any  Treaty,  Alliance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal; 
coin  Money;  emit  Bills  of  Credit;  make  any  Thing  but 
gold  and  silver  Coin  a  Tender  in  Payment  of  Debts;  pass 
any  Bill  of  Attainder,  ex  post  facto  Law,  or  Law  impair- 
ing the  Obligation  of  Contracts,  or  grant  any  title  of 
Nobility. 

2.  No  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for  executing  its 
inspection  Laws;  and  the  net  Produce  of  all  Duties  and 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States;  and 
all  such  Laws  shall  be  subject  to  the  Revision  and  Con- 
troul  of  the  Congress. 

3.  No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops  or  Ships  of  War, 
in  time  of  Peace,  enter  into  any  Agreement  or  Compact 


i64  Appendix 

with  another  State,  or  with  a  foreign  Power,  or  Engage 
in  War,  unless  actually  invaded,  or  in  such  imminent 
Danger  as  will  not  admit  of  delay. 


ARTICLE  II. 
Section  1. 

1.  The  Executive  Power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  oflBce 
during  the  Term  of  four  Years,  and,  together  with  the 
Vice-President,  chosen  for  the  same  Term,  be  elected  as 
follows : 

2.  Each  State  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Congress 
but  no  Senator  or  Representative,  or  Person  holding  an 
Office  of  Trust  or  Profit  under  the  United  States,  shall  be 
appointed  an  Elector. 

3.  'The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  Persons,  of  whom  one  at  least 
shall  not  be  an  Inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each;  which 
List  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  Seat  of  the  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  Certificates,  and  the  Votes 
shall  then  be  counted.  The  Person  having  the  greatest 
number  of  Votes  shall  be  the  President,  if  such  Number 
be  a  Majority  of  the  whole  Number  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  a  Majority, 

*  See  Amendment  XII. 


Appendix  165 

and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse,  by  Ballot  one 
of  them  for  President;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List,  the  said  House 
shall  in  like  manner  chuse  the  President.  But  in  chusing 
the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  vote;  A 
quorum  for  this  Purpose  shall  consist  of  a  Member  or 
Members  from  two  thirds  of  the  States,  and  a  Majority  of 
all  the  States  shall  be  necessary  to  a  Choice.  In  every 
Case,  after  the  Choice  of  the  President,  the  Person  having 
the  greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice-President.  But  if  there  should  remain  two  or  more 
who  have  equal  Votes,  the  Senate  shall  chuse  from  them 
by  Ballot  the  Vice-President. 

4.  The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  day  on  which  they  shall  give  their 
Votes;  which  Day  shall  be  the  same  throughout  the 
United  States. 

5.  No  Person  except  a  natural-born  Citizen,  or  a 
Citizen  of  the  United  States,  at  the  time  of  the  Adoption 
of  this  Constitution,  shall  be  eligible  to  the  Ofiice  of 
President;  neither  shall  any  Person  be  eligible  to  that 
Office  who  shall  not  have  attained  to  the  Age  of  thirty- 
five  Years,  and  been  fourteen  Years  a  Resident  within 
the  United  States. 

6.  In  Case  of  the  Removal  of  the  President  from  Oflfice, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  Same  shall 
devolve  on  the  Vice-President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal,  Death,  Resigna- 
tion, or  Inability  both  of  the  President  and  Vice-President 
declaring  what  Officer  shall  then  act  as  President,  and 
such  Officer  shall  act  accordingly,  until  the  disability  be 
removed,  or  a  President  shall  be  elected- 


1 66  Appendix 

7.  The  President  shall,  at  stated  Times,  receive  for  his 
Services,  a  Compensation,  which  shall  neither  be  In- 
creased nor  diminished  during  tlie  Period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  Period,  any  other  Emolument  from  the  United 
States,  or  any  of  them. 

8.  Before  he  enter  on  the  Execution  of  his  Office  he 
shall  take  the  following  Oath  or  Affirmation: — "I  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  Office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  Ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States," 

Section  2. 

1.  The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia 
of  the  several  States,  when  called  into  the  actual  Service 
of  the  United  States;  he  may  require  the  Opinion,  in 
writing,  of  the  principal  Officer  in  each  of  the  Executive 
Departments,  upon  any  Subject  relating  to  the  Duties  of 
their  respective  Offices,  and  he  shall  have  Power  to  grant 
Reprieves  and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment. 

2.  He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of 
the  Senate,  shall  appoint  Ambassadors,  other ^Pubhc 
Ministers,  and  Consuls,  Judges  of  the  Supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Ap- 
pointments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  Law :  but  the  Congress  may 
by  Law  vest  the  Appointment  of  such  inferior  Officers,  as 
they  think  proper,  in  the  President  alone,  in  the  Courts 
of  Law,  or  in  the  Heads  of  Departments. 


Appendix  167 

3.  The  President  shall  have  Power  to  fill  up  all  Vacan- 
cies that  may  happen  during  the  Recess  of  the  Senate, 
by  granting  Commissions  which  shall  expire  at  the  End 
of  the  next  Session. 

Section  3. 
1.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend 
to  their  Consideration  such  Measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary 
Occasions,  convene  both  Houses,  or  either  of  them,  and 
in  Case  of  Disagreement  between  them,  with  Respect 
to  the  time  of  Adjournment,  he  may  adjourn  them  to 
such  Time  as  he  shall  think  proper;  he  shall  receive  Am- 
bassadors and  other  public  Ministers;  he  shall  take  Care 
that  the  Laws  be  faithfully  executed,  and  shall  com- 
mission all  the  Officers  of  the  United  States. 

Section  4. 

1.  The  President,  Vice-President,  and  all  civil  Officers 
of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery, 
or  other  high  Crimes  and  Misdemeanors. 

ARTICLE  III. 

Section  1. 

1.  The  judicial  Power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  Courts 
as  the  Congress  may,  from  time  to  time,  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behavior,  and 
shall,  at  stated  Times,  receive  for  their  Services  a  Com- 
pensation, which  shall  not  be  diminished  during  their 
Continuance  in  Office. 


i68  Appendix 

Section  2. 

1.  'The  judicial  Power  shall  extend  to  all  Cases,  in 
Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority; — to  all  Cases 
affecting  Ambassadors,  other  public  Ministers  and 
Consuls; — to  all  Cases  of  admiralty  and  maritime  Juris- 
diction; to  Controversies  to  which  the  United  States 
shall  be  a  Party; — to  Controversies  between  two  or  more 
States; — between  a  State  and  Citizens  of  another  State; 
— between  Citizens  of  different  States, — between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens,  or  Subjects. 

2.  In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State  shall 
be  a  Party,  the  Supreme  Court  shall  have  original  Juris- 
diction. In  all  the  other  Cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  Jurisdiction,  both  as 
to  Law  and  Fact,  with  such  Exceptions,  and  under  such 
regulations  as  the  Congress  shall  make. 

\i.  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury;  and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have  been  committed; 
but  when  not  committed  within  any  State,  the  Trial 
shall  be  at  such  Place  or  Places  as  the  Congress  may  by 
Law  have  directed. 

Section  3. 

1.  Treason  against  the  United  States,  shall  consist 
only  in  levying  War  against  them,  or  in  adhering  to  their 
Enemies,  giving  them  Aid  and  Comfort.  No  Person  shall 
be  convicted  of  Treason  unless  on  the  Testimony  of  two 

'  See  Amendment  XI. 


Appendix  169 

Witnesses  to  the  same  overt  Act,  or  on  Confession  in 
open  Court. 

2.  The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason  shall 
work  Corruption  of  Blood,  or  Forfeiture  except  during 
the  Life  of  the  Person  attained. 


ARTICLE  IV. 

Section  1. 

1,  Full  Faith  and  Credit  shall  be  given  in  each.  State 
to  the  public  Acts,  Records,  and  judicial  Proceedmgs  of 
every  other  State.  And  the  Congress  may  by  general 
Laws  prescribe  the  manner  in  which  such  Acts,  Records, 
and  Proceedings  shall  be  proved,  and  the  Effect  thereof. 

Section  2. 

1.  The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several 
States. 

2.  A  Person  charged  in  any  State  with  Treason, 
Felony,  or  other  Crime,  who  shall  flee  from  Justice,  and 
be  found  in  another  State,  shall  on  Demand  of  the  execu- 
tive Authority  of  the  State  from  which  he  fled,  be  de- 
livered up  to  be  removed  to  the  State  having  Jurisdiction 
of  the  Crime. 

3.  'No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall,  in 
Consequence  of  any  Law  or  Regulation  therein,  be  dis- 
charged from  such  Service  or  Labour,  but  shall  be  de- 
livered up  on  Claim  of  the  Party  to  whom  such  Service 
or  Labour  may  be  due. 

^  See  Amendments  XIII.,  XIV.,  XV. 


170  Appendix 

Section  3. 

1.  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State 
be  formed  by  the  Junction  of  two  or  more  States,  or 
Parts  of  States,  without  the  Consent  of  the  Legislatures 
of  the  States  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

Section  4. 

1.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion;  and  on 
Application  of  the  Legislature,  or  of  the  Executive  (when 
the  Legislature  cannot  be  convened)  against  domestic 
Violence. 

ARTICLE  V. 

1.  The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two  thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or  by  Conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of 
Ratification  may  be  proposed  by  the  Congress;  Provided 


Appendix  171 

that  no  Amendment  which  may  be  made  prior  to  the 
Year  one  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article;  and  that  no  State,  without 
its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in 
the  Senate. 

ARTICLE  VI. 

1.  All  Debts  contracted  and  Engagements  entered 
into,  before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation. 

2.  This  Constitution,  and  the  Laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the  Author- 
ity of  the  United  States,  shall  be  the  supreme  Law  of 
the  Land;  and  the  Judges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution  or  Laws  of  any 
State  to  the  Contrary  notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  AflSrmation,  to  support  this  Constitution;  but  no 
religious  Test  shall  ever  be  required  as  a  Qualification 
to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE  VII. 

1.  The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  Establishment  of  this  Constitu- 
tion between  the  States  so  ratifying  the  same. 

Done  in  Convention    by  the 
Unanimous    Consent    of    the 


172  Appendix 

^States  present  the  Seventeenth 
Day  of  September  in  the  Year 
of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and 
of  the  Independence  of  the 
United  States  of  America  the 
Twelfth  In  Witness  whereof 
We  have  hereunto  subscribed 
our  Names, 

G:'WASHINGTON— Prmcif 
and  deputy  from  Virginia. 
Attest  WilUam  Jackson  Secretary. 

New  Hampshire: 
John  Langdon 
Nicholas  Gilman 

Massachusetts: 

Nathaniel  Gorham 
Rufus  King 

Connecticut: 

Wm:  Saml.  Johnson 
Roger  Sherman 

New  York: 

Alexander  Hamilton 

•The  word,  "the,"  being  interlined  between  the  seventh  and 
eighth  Lines  of  the  first  Page,  The  Word  "Thirty"  being  partly 
written  on  an  Erazure  in  the  fifteenth  Line  of  the  first  Page,  The 
Words  "is  tried"  being  interlined  between  the  thirty-second  and 
thirty-third  Lines  of  the  first  Page  and  the  Word  "the"  being  inter- 
lined between  the  forty-third  and  forty-fourth  Lines  of  the  second 
Page. 

(Note  by  Department  of  State:  The  interlined  and  rewritten 
words  mentioned  in  the  above  explanation,  are  in  this  edition,  printed 
in  their  proper  places  in  the  text.] 


Appendix  173 


Neio  Jersey: 

Wil:  Livingston 
David  Brearley 
Wm.  Paterson 
Jona:  Dayton 

Pennsylvania: 
B  Franklin 
Thomas  Mifflin 
Robt.  Morris 
Geo.  Clymer 
Thos.  Fitz  Simons 

Jared  Ingersoll 
James  Wilson 
Gouv  Morris 

Delaware: 

Geo:  Read 

Gunning  Bedford  jun 
John  Dickinson 
Richard  Bassett 
Jaco:  Broom 

Maryland: 

James  McHenry 

Dan  of  St.  Thos.  Jenifer 

Danl  Carroll 

Virginia: 

John  Blair — 
James  Madison  Jr. 

North  Carolina: 
Wm :  Blount 
Richd.  Dobbs  Spaight 
Hu  Williamson 


174  Appendix 

South  Carolina: 
J.  Rutledge 

Charles  Cotesworth  Pinckney 
Charles  Pinckney 
Pierce  Butler 

Georgia : 

William  Few 
Abr  Baldwin 

[Articles  in  Addition  to  and  Amendment  of  the  Con- 
stitution of  the  United  States  of  America,  Proposed  by 
Congress  and  Ratified  hy  the  Legislatures  of  the  several 
States,  Pursuant  to  the  Fifth  Article  of  the  Constitution.] 

(ARTICLE  I.) 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof 
or  abridging  the  freedom  of  speech,  or  of  the  press;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances.  (1789) 

(ARTICLE  II.) 

A  well-regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  tJie  people  to  keep 
and  bear  Arms,  shall  not  be  infringed.  (1789) 

(ARTICLE  III.) 

No  Soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor,  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law,  (1789) 

(ARTICLE  IV.) 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 


Appendix  i75 

and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized.  (1789) 

(ARTICLE  V.) 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
Criminal  Case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process 
of  law;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation.  (1789) 

(ARTICLE  VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him;  to  have  compulsory  process  for 
obtaining  Witnesses  in  his  favor,  and  to  have  the  as- 
sistance of  Counsel  for  his  defence.  (1789) 

(ARTICLE  VII.) 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be 


176  Appendix 

otherwise  re-examined  in  any  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law.  (1789) 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

(1789) 
(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people.  (1789) 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people.  (1789) 

(ARTICLE  XI.) 

The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State.  (1798) 

(ARTICLE  XII.) 

Section  1. 

The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 


Appendix  177 

and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government 
of  the  United  States,  directed  to  the  President  of  the 
Senate; — the  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted; — The 
person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two  thirds  of  the  States,  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  Presi- 
dent whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of  the 
President.  The  person  having  the  greatest  number  of 
votes  as  Vice-President  shall  be  the  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed,  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list,  the  Senate 
shall  choose  the  Vice-President;  a  quorum  for  the  purpose 
shall  consist  of  two  thirds  of  the  whole  number  of  Sena- 
tors, a  majority  of  the  whole  number  shall  be  necessary 
to  a  choice.  But  no  person  constitutionally  ineligible  to 
the  office  of  President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States.  (1804) 


178  Appendix 

(ARTICLE  XIII.) 

Section  1. 

Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

Section  2. 

Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation.     (1SG5) 

(ARTICLE  XIV.) 

Section  1. 

All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

Section  2. 

Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President  and 
Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  Executive  and  Judicial  officers  of  a  State, 
or  the  members  of  the  Legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in 


Appendix  i79 

any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall 
be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty -one  years  of  age  in  such  State. 

Section  3. 

No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or 
hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  State,  who,  having  previously  taken  an 
oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  Legislature, 
or  as  an  executive  or  judicial  officer  of  any  State,  to 
support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof.  But 
Congress  may  by  a  vote  of  two  thirds  of  each  House, 
remove  such  disability. 

Section  4. 

The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrec- 
tion or  rebellion  against  the  United  States,  or  any  claim 
for  the  loss  or  emancipation  of  any  slave;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and 
void. 

Section  5. 

The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article.    (1868) 


i8o  Appendix 

(ARTICLE  XV.) 
Section  1. 

The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Section  2. 

The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation.  (1870) 

(ARTICLE  XVI.) 

The  Congress  shall  have  power  to  lay  and  collect  taxes 
on  incomes  from  whatever  source  derived,  without 
apportionment  among  the  several  States  and  without 
regard  to  any  census  or  enumeration.  (1913) 

(ARTICLE  XVII.) 

,.>^ECTION    1. 

The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  elected  by  the  people 
thereof,  for  six  years;  and  each  Senator  shall  have  one 
vote.  The  Electors  in  each  State  shall  have  the  qualifica- 
tions requisite  for  Electors  of  the  most  numerous  branch 
of  the  State  Legislature. 

Section  2. 

When  vacancies  happen  in  the  representation  of  any 
State  in  the  Senate,  the  executive  authority  of  such  State 
shall  issue  writs  of  election  to  fill  such  vacancies:  Pro- 
vided, That  the  Legislature  of  any  State  may  empower 
the  executive  thereof  to  make  temporary  appointments 
until  the  people  fill  the  vacancies  by  election  as  the 
Legislature  may  direct. 


Appendix  i8i 

Section  3. 

This  amendment  shall  not  be  construed  as  to  affect 
the  election  or  term  of  any  Senator  chosen  before  it 
becomes  valid  as  part  of  the  Constitution.  (1913) 

(ARTICLE  XVIII.) 

Section  1. 

After  one  year  from  the  ratification  of  this  article  the 
manufacture,  sale,  or  transportation  of  intoxicating 
liquors  within,  the  importation  thereof  into,  or  the  ex- 
portation thereof  from  the  United  States  and  all  territory 
subject  to  the  jurisdiction  thereof  for  beverage  purposes 
is  hereby  prohibited. 

Section  2. 

The  Congress  and  the  several  States  shall  have  con- 
current power  to  enforce  this  article  by  appropriate 

legislation. 

Section  3. 

This  article  shall  be  inoperative  unless  it  shall  have 
been  ratified  as  an  amendment  to  the  Constitution  by 
the  Legislatures  of  the  several  States,  as  provided  in  the 
Constitution,  within  seven  years  from  the  date  of  the 
submission  hereof  to  the  States  by  the  Congress.     (1920) 

(ARTICLE  XIX.) 

Section  1. 

The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  sex. 

Section  2. 

Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation.     (1920) 


CASES  CITED 


American  Insurance  Co.  v.  Cen- 
ter, 1  Peters  511  (1828).  34 


Blake   v.    McCIimg,    172   U.     S. 
239   (1898),   45 


Chisholm  v.  Georgia,    2  Dallas 

419  (1793),  12 
Civil  Rights  Cases,    109  U.  S.  3 

(1883),  45 
Cohens  v.  Virginia,    6  Wheaton 

387  (1821),  27,  98 

D 

Dorr  V.  U.  S.,   195    U.  S.    138 

(1904),  45 
Downes  v.   Bidwell,     182   U.   S. 

244  (1901),  45,  48,  143 
Dred     Scott     v.     Sanford,      19 

Howard  393  (1857),  12 

E 

Ex  parte  Siebold,  100  U.    S.  871 
(1879),  34 


Gaines  v.  Thompson,    7  Wallace 

347,  110 
Georgia  v.  Stanton,    6  Wallace 

57,  110 

H 

Havenstein    v.    Lynhaven,    100 
U.  S.  483  (1879),  45 


Hawaee  v.  Monkishi,  190  U.  S. 

197  (1903),  45 
Head  Money  Cases,    112  U.  S. 

580  (1884),  136 
Honer  r.  Yaker,    9  Wallace  32 

(1869),  136 
Hooe  V.  jaraieson,  166  U.  S.  395 

(1897),  45 


Jiiillard  v.  Greenman,    110  U.  S. 
421  (1884),  33 


Lascelles  v.  Georgia,    148  U.  S. 

537  (1893),  45 
Luther  v.  Borden,    7  Howard  1 

(1848),  25 

M 

37  Maine  29,  104 

Marbury  v.    Madison,  1  Cranch 

137  (1803),  15,  28,  60,  67,  98, 

110 
8  Mass.  171,  104 
Minor  r.  Happersett,  21  Wallace 

182   (1874),   25 
Mississippi  v.  Johnson,  4  Wallace 

475,  110 
McCulloch       V.       Maryland,    4 

Wheaton    316  (1819),  5,  8,  9, 

36 

N 

New  Orleans  v.  Paine,   147  U.  S. 
261,   122 


183 


1 84 


Cases  Cited 


o 

Ohio  and  Mississippi  R-  R. 
V.     Wheeler,     1     Black 
(1861),  45 


Co. 
280 


Paul  V.  Virginia,  8  Wallace  168 
(1868).  45 

People,  The,  e.r  rel,  the  Attorney- 
General  V.  Gerke,  5  California 
381  (1855)  136 


Slaughter  House  Cases,  16 
Wallace  35  (1872),  45 

St.  Louis  and  San  Francisco 
R.  R.  Co.  V.  James,  161  U.  S. 
'i45  (1896),  45 


Texas  v.  White,  7  Wallace 
(1868),  16,  25 


700 


Trustees  of  Dartmouth  College, 
V.  Woodward,  4  Wheaton  518 
(1819),  14,  79 

Twining  v.  State  of  New  Jersey, 
211  U.  S.  78  (1908),  45 


U 


U.  S.  V.   Blaine,  139  U.  S.  306, 

110 
U.  S.  V.  Black,  128  U.  S.  40,  110 
U.  S.  V.   Cruikshank,  92  U.  S. 

542  (1872),  45 
U.  S.  V.   Ju  Toy,  198  U.  S.  253 

(1905),  45 
U.  S.  V.  Stanley,109  U.  S.3(1883), 

14 
U.  S.  V.  Windom,  137  U.  S.   636, 

110 
U.   S.   V.    Wong   Kim   Ark,    169 

U.  S.  649  (1898)  45 


Yick  Wo  V.  Hopkins  118,    356 
(1886),  7 


INDEX 


Adams,  Samuel,  127 
Adaptability   of    the    American 

system,  28 
Administration,  7,  9,  32,  144 
Administrative,  limited,  30;  the, 

Ch.     XI     defined,     107;     law. 

(bibliography),    114 
Agency,  political,  see  Agents 
Agents,  6,  21,  29,  37,  62,  76,  82 
Agriculture,  Department,  109 
Alabama,  constitution,  128 
Alaska,  142 
Alderman's  Court,  103 
Aliens  (case  of  Yaker),  136;  law 

of,  45 
Amendment  XVI,  7;  XIII,  12; 

XIV,  XV,  13;  X,  36,  145;  X,  64; 

XV,  80 

American  Bar  Association  Jour- 
nal, 8 

American  Commonwealth,  The, 
see  Bryce 

American  Government,  the  New, 
38,  111 

American  Government  and 
Politics,  39 

American  Judiciary,   The,  39 

American  History,  Documentary 
Source  Book  of,  39 

American  Legislatures  and  Legis- 
lation, 87 

Americanization,  32 

Appeals,  97 

Apportionment,  18,  71,  74 

Aristotle,  76 

Arizona,  constitution,   128 

Argument  court,  103 

Athens,  47 

Atterbury,  Bishop,  114 

Attorney- General,  108 


B 


Baker,  R.  S.,  8 

Baldwin,  Simeon  E.,  39,  106 

Ballot,  120 

Bancroft,  George,  68 

Banking  Department,  112 

Barnett,  James  D.,  82 

Beard,     Charles    A.,     American 

Government    and    Politics,    39; 

Documents,  etc.,  by  Beard  and 

Schultz,  82 
Beecher,  Henry  Ward,  131 
Benton,  Thomas  H.,  80 
Beveridge,  Life  of  Marshall,  8, 

79 
Bible,  32 
Bibliography   (books),  149-154. 

Appendix  I 
Bibliography  of  the  Constitution, 

68 
Bill  of  Rights,  7,  35 
Books   (bibliography),   149-154. 

Appendix  I 
Boston,  24 
Boston    University   Law   Review, 

79 
Bramhall,  F.  D.,  86 
Bryce,  James,  6,  30,  33,  39,  93, 

106,  123,  131 
Budget,  87 
Burr,  Aaron,  77;  Hamilton-Burr 

duel,  131 


Cabinet,  the,  5,  15;  organization, 

108,  109 
California,   administrative   code 

of,  114 
Campaign,  the,  118 
Canals,  Department,  112 


i85 


186 


Index 


Candidates,  117.  118 

Carlyle,  Thomas,  90 

Carriers,  common,  125 

Cases  on  International  Law,  140 

Charities,  55 

Charities,  Department,  112 

Charter  ("home  rule"),  52  et 
seq.;  as  privileges,  92 

"  Checks  and  balances, "  143,  145 

Chicago,  24 

Circuit  courts,  100 

Circuit  judges  (Florida),  20 

Cities,  Ch.  VI;  U.  S.  Constitu- 
tion not  made  for,  48 

Citiz-en,  the,  Ch.  V;  service  of, 
43;  law  cases,  45 

Citizenship,  dual,  42;  law  of,  45 

Civics,  philology  of,  47 

Civil  Court,  103 

Civil  rights,  40 

Civil  Rights  Bill,  14 

Civil  service,  110,  111 

Cleveland,  Grover,  President,  121 

Coalition  cabinet,  115,  116 

Coalition,  115,  116 

Commentaries  on  the  Constitution 
of  the  United  States,  68 

Commerce,  Department,  109 

Commissioners  (State),  112; 
County,  23,  112 

Common  Sense,  130 

Commonwealth,  the  American, 
see  Bryce 

Communism,  3 

Comparative  Administrative  Law, 
151 

Congress,  power  of,  14,  64,  65 

C'onstituency,  126 

Constitution  (State),  6;  con- 
forms to  the  federal,  19 

Constitution  (U.  S.),  4,  5;  for 
what  made,  16;  prescribes,  63; 
"Bibliography"  of,  68;  inter- 
national law,  part  of,  135; 
text,  see  Appendix  II 

Constitutional,  62 

Constitutional  Decisions  of  John 
Marshall,  68 

Constitutional  History  of  the 
United  States,  30,  68 

Constitutional  Law  of  the  United 
States,  The,  68 


Cooley,  Thomas  M.,  39,  68 

Coordination  of  parts  (func- 
tions), 68 

Cobporation,  public,  17;  county 
a,  23;  a  district  as,  75;  De- 
partment, 112 

Cotton,  J.  P.,  69,  106 

Council,  common,  select,  51 

County,  23;  commissioners,  23; 
judges,  23;  poor  of,  24;  officials, 
24 

Court,  inferior,  65;  see  Supreme 
Court 

Courts  of  law,  constitutional,  12, 
15;  County,  20;  functions  of, 
67,  105;  kinds  of,  99,  100;  of 
First  Instance,  103;  of  Record, 
104,  105 

Criminal,  103 

Curtis,  George  T.,  68 


D 


Dartmouth  College  Code,  79 

De  Civitate  Dei,  141 

Declaration  of  Independence, 
81,91 

Declarations  of  Rights,  35 

Delaware,  constitution,   128 

Delegates,  116,  146 

Deming,  H.,  60 

Democracy,  4 

Democracy  and  the  Organization 
of  Political  Parties,  123 

Democratic  Party,  117 

Departments  (State  govern- 
ment), 112;  Ch.  XI 

De  AVitt,  D.  M.,  95 

Disarmament  Conference,  130, 
137,  148 

District,   Congressional,   18,  71; 

State,  Presidential,  20;  assembly, 
71;  county  senatorial,  75 

Divorce,  79 

Douglas,  Stephen  A.,  129 

Dred  Scott,  12 

Due  process  of  law,  97,  106 


E 


Education  Department,  112 
Election,    5;   laws,   55,    120;   of 


Index 


187 


Election — Continued 

legislators,  71;  of  public  ofla- 
cials,  113;  U.  S.  utilizes  State 
machinery,  120,  123;  fair,  145 

Electoral  College,  89 

Selectors,  presidential,  19,  88 

Elizabeth,  Queen,  91 

Equity  Court,  103 

Essentials  of  American  Constitu- 
tional Lajn,  The,  29,  68 

Essentials  of  International  Public 
Law,  The,  46,  141 

Executive,  the,   Ch.  IX;  duties, 
93;  departments,  Ch.  XI 

Executive,       limited,       29,    91; 
powers,  92;  duties,  93,  94,  107 

Experts,  urban  service  of,  58 

Extradition,  law  of,  45 


Fairlie,  J.  A.,  93 

Federalist,  the,  4,  68,  82,  83,  84, 

95,  106,  143,  146,  147 
Finley,  J.  H..  92 
Florida,  20;  purchase,  34;  courts 

of,  101 
Ford,  Paul  L.,  68 
Forestry  Department,  112 
Foster,  J.  W.,  141 
Franklin,  Benjamin,  31,  32,  113, 

129 
French  judicial  system,  103 
Functions  of  government,  29 


Garner,  J.  W.,  Introduction  to 
Political  Science,  9 

Georgia,  122;  sessions  of  legis- 
lature of,  127 

Gerrymandering,  73 

Gettysburgh  Address,  32 

Goodnow,  F.  J.,  114 

Government,  republican,  4,  17, 
143;  fundamentals  of,  Ch. 
II;  functions,  29;  stability  of 
American,  33,  131;  objects  of, 
35;  of  IT.  S.  limited,  35,  36; 
protection,  43;  the  State, 
federal  in  form,  51;  the  city, 
federal    in    form,    51;    "com- 


mission,"   59,     see     Ch.    VI; 

coordination  of  parts  of,  68; 

basis,   75,   76;   representative, 

85,     86;     The     Principles     of 

American,  Ch.XV;  purpose  of, 

143;  "checks  and  balances," 

143,  145 
Government  of  American   Cities, 

The,  60 
Government  of  the  United  States, 

National,  State  and  Local,  The, 

39 
Governor,    the    (see    Executive, 

and  Ch.  IX),  88-95 
Greeley,  Horace,  93 


H 


Hague  Tribunal,  148 
Hamilton,  Alexander,  38,  68,  82, 

83,  84,  91,  115 
Hamilton-Burr  duel,  131 
Hamilton's   Ideas  in   Marshall's 

Decisions,  79 
Hanseatic  League,  47 
Harding,  President,  130,  137,  141 
Hart,  Thomas,  85 
Hayes,  II.  B.,  President,  121 
Health  Department,  112 
Henderson,  J.  W.,  80 
Hershey,  A.  S.,  46,  141 
History    of    Cumulative     Voting 

and    Minority    Representation, 

The,  86 
History  of  the  Formation   of  the 

Constitution     of     the      United 

States  of  America,  68 
History    of   the    One    Hundredth 

Anniversary  of  the  Promulga- 
tion of  the  Constitution  of  the 

United  States,  68 
"Home-Rule,"    23,    24,   51,   52, 

53,    54;    reasons    for,    54-60; 

objections  to,  53  et  seq. 
House  of  Representati\'^s,  U.  S., 

63;  State,  70 


Illinois,  52;  constitution,  85 
Immunities,  41 
Indebtedness,  55 


i88 


Index 


Individualism,  3 

Injunction,    writ,    110;   law   of, 

110 
Insurance  Department,  112 
Interior  Department,  109 
International   law    (part   of   the 
supreme     law),    133;     biblio- 
graphy, 141 
International  Relations,  Ch.XIV 
Introduction  to   Political   Parties 

and  Practical  Politics,  123 
Introduction  to  Political  Science, 

Garner,  9 
Isaiah,  32 


James  II,  30 

Jay,  John,  68 

Jefferson,  Thomas,  President, 
115,  148 

Judges,  tenure  in  Massachusetts, 
21;  county,  23;  learned  in  the 
law,  105 

Judiciary  Act,  1789,  98 

Judiciary,  limited,  30;  the,  Ch. 
X;  the  American,  106 

Jurisdiction,  7;  original,  appel- 
late, 66,  97;  final,  98,  99;  of 
courts  of  law,  102,  and  Ch.  X 

Jury,  106 

Justice,  11;  Department,  112; 
principle,  146 

Justices,  12;  Court,  103 


Kentucky,  136 
King,  philology,  90 


Labor  Department,  109,  112; 
Party,  117 

Law,  the  Supreme  (see  U.  S. 
Constitution),  4;  the  "higher," 
36;  Ch.  VII;  title  of,  77;  due 
process  of,  97;  Comparative 
Administrative,  114;  inter- 
national, 133;  by  whom  made, 
144 

League  of  Nations,  148  (and 
bibliography  ib.) 


Legislation,  special,  78,  79 

Legislative,  limited,  30;  the,  70 

Legislature,  State,  18,  19;  powers 
of,  63;  Ch.  VIII;  of  Pennsyl- 
vania, 78;  American  Legisla- 
tures and  Legislation,  87; 
sessions,  127 

Le  Principe,  141 

Lieutenant-Governor,  89 

Lincoln,  31,  32,  44,  111,  115, 
117,  129,  130,  146 

Local  Government  in  Counties, 
Towns  and  Villages,  92 

"Lock-outs,"  125 

Louis  XIV,  76 

Louisiana,  subdivision  of,  23; 
purchase,  34,  119;  constitu- 
tion, 62 

Lusitania,  the,  132 

M 

Macchiavelli,  141 
Macdonald,  William,  39 
Madison,    James,    President,    4, 

21,  38,  68,  83 
Majority  rule,  45,  145 
Malfeasance,  144 
Mandamus,    writ,    110;   law   of, 

110 
Manila,  48 

Manual  of  State  government,  26 
Marshall,    John,    5;      Life,    see 

Beveridge, 30,66;  Constitutional 

Decisions   of,  69,   106;   truism 

of,  79 
Maryland,  constitution,  139 
Massachusetts,  20;  constitution, 

30,  77;  Convention  of  1820,  81; 

courts,  102 
Mayors'  court,  104 
McKee,  T.  H.,  118 
Merit  system,  110 
Michigan     (senatorial     election 

case),  119;  constitution,  128 
Mill,  J.  S.,  85 
Mines  and  Mining  Department, 

112 
Minority,  the,  83 
Mississippi,  71,  72,  73;  constitu- 
tion, 128,  138 
Missouri,  52,  75 


Index 


189 


Monarchy,  3 

Monej,  83 

Monopoly,  federal,  33,  34 

Montana,  135 

Montesquieu,  146,  147 

Morality,  146 

Munro,  W.  B..  39,  60 

N 

Nation,  7 

National  Platforms  of  All  Poli- 
tical Parties,  118 

Nationalism,    The   New,   etc.,    8 

Navy  Department,  108 

Newberry-Ford  case,  119 

New  Jersey,  20;  courts,  102,  121 

New  York  City,  48,  77 

New  York  State,  48;  districting, 
72,  73,  75,  121;  constitution, 
128 

Nevada,  constitution,  138.    139 

Nomination,  116 


O 


OflBce,  no  life,  21;  incompatible, 
76 

Ohio,  52,  74;  constitution,  85, 
121 

Operation  of  the  Initiative,  Ref- 
erendum and  Recall  in  Oregon, 
82 

Orphans  Court,  103 

Ostrogorski,  M.,  123 

Outlying  possessions,  28;  U.  S. 
Constitution  not  made  for,  48 


Paine,  Thomas,  130 

Panama,  137 

Parish  in  Louisiana,  23 

Parties,  political,  Ch.  XII 

People,  the,  6 

Pennsylvania,  52,  74;  Legisla- 
ture of,  78;  minority  represen- 
tation in,  86 

Persons,  the  basis  of  govern- 
ment, 17,  50,  75 

Philadelphia,  24 

Philippines,  the,  142 

Pittsburgh,  24 


"Planks,"  116 

"Platforms,"  116 

Police  Court,  103 

Police  power,  7 

Political  Parties,  Ch.  XII 

Politics,  philology  of,  47 

Pope,  Alexander,  113 

Population  of  U.  S..  122 

Porto  Rico,  142 

Possessions,  outlying,  28;  U.  S. 
Constitution  not  made  for,  48 

Post-Office  Department,  108 

Powell,  T.  R.,  69 

Power,  14;  of  U.  S.  Government, 
35;  how  much  delegated,  36, 
37;  delegated,  62;  legislative, 
63;  Congress,  64,  65;  judicial, 
96-106;  limitation  of,  134,  145 

Preamble,  10 

President,  the,  65  {see  Ch.  IX) 
88-95;  advisors  {see  Cabinet) 
108,  109 

Principles  of  American  Govern- 
ment, the,  Ch.  XV 

Principles  of  Constitutional  Law, 
39,  68 

Private  international  law,  140 

Privileges  (chartered),  91 

Privileges  and  immunities,  41, 
42;  law  of,  45 

Probate  Court,  103 

Process,  due  of  law,  106 

Public  Opinion,  Ch.  XIII 

Public  works,  24 


R 


Railroads  and  Canals  Depart- 
ment, 112 

Ray,  P.  O.,  123 

Reinsch,  Paul  R.,  87 

Relations,  federal,  21 

Representation,  principle,  4,  6, 
26,  28,  38,  45,  53,  75,  82; 
minority,  84-86;  propor- 
tional, 85,  90,  95,  122 

Representative  Government,  85 

Representatives,  4;  Election  of. 
The,  85 

Republican,  form,  4;  guaranteed, 
25,  38,   122,   145 

Republican  Party,  117 


190 


Index 


Right  to  vote,  41 
Rights,  civil,  political,  40,  41 
Roads   and   Highways,   Depart- 
ment, 112 
Rome,  47 
Russia,  137 


St.  Augustine,  141 
St.  Louis,  24 
Schools,  55,  59 
Schulz,  Birl  E.,  82 
Scott,  James  Brown,  140 
Secretaries  (Cabinet),^  108,  109 
"Self-determination,"  51 
Senate,  U.  S.,  63;  State,  70 
Senator,  U.  S.,  election  of,  18 
Sessions,  legislative,  127 
Shaw,  C.  J.,  opinion  of,  114 
Sinking- Fund   Department,   112 
So2irccs  of  the  Constitution,  95 
Sovereignty,  Ch.  I,  3,  6;  "resid- 
uary," 7,  8,   15;  State,  66;  a 
difficulty,  147 
Spirit  of  Laws,  146,  147 
"Spoils"  system,  110 
State,  5;  the  American,  Ch.  Ill; 
defined  17;  Legislature  of,  18; 
federal  relations  of,  21;  inter- 
State   relations,    22;    equality 
of,    21,    22;   independent,    25; 
manual,  26;  judges  bound  by 
U.    S.  Constitution,  28;  sover- 
eignty of,  66;  Courts,  101,  102, 
103,  104;  Department,  108 
Stevens,  C.  E.,  95 
Storey,  Joseph,  39,  68 
Stowe,  Harriet  Beecher,  131 
"Strikes,"  130 

Supreme  Court,  14,  65,  66,  96,  99. 
100;  members  of,  100;  of  State, 
101  et  seq. 
Supreme  Law,  Ch.  VII;  con- 
strued, "strict,"  or  "liberal," 
117;  international  law  part  of, 
135 
Switzerland,  136 


Taxation  and  Finance,  Depart- 
ment, 112 


Taxes,  4,  11,  54,  117,  146 

Tennyson,  Alfred,  147 

Territories  and  Colonies,  93 

Territories,  U.  S.  Constitution 
not  made  for,  16,  48 

Thebes,  47 

Things,  not  the  basis  of  govern- 
ment, 17 

Title  of  law,  77 

Treasury  Department,  108 

Treaties,  96.  133,  134 


U 


Uncle   Tom's  Cabin,  131 
United     States,     the,     Ch.   IV; 

power  over  elections,  121 
Urban  (interests),  49 


Venue,  66 

Versailles  Conference,  116 

Vice-President,  89,  90 

Voters,  43  {see  Citizen,  Citizen- 
ship), urban,  56;  in  U.  S.  A., 
122 

Voting,  compulsory,  122 

W 

War  Department,  108 

Washington,  George.  President, 
115 

Washington  (State,  administra- 
tive code  of),  114 

Webster,  Daniel,  14;  quoted,  81 

West  Virginia,  44 

WiUoughby,  W.  W.,  39,  68,  93 

Wilson,  Woodrow,  President, 
116,  121 

Wisconsin,  73 

World-Republic,  148 

World-Unity,  140 

World  War,  116 

Wrong,  legal,  13 


Yaker.  case  of,  136 
Young,     James    T.,     The    New 
American  Government,  38,  111 


/i  Selection  from  the 
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G.  P.  PUTNAM'S  SONS 


Co«npl*te  CalalogUea  seat 
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By  JAMES  A.  WOODBURN 


The  American  Republic  and  Its  Government 

An  Analysis  of  the  Government  of  the  United  States, 
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Political  Parties  ^ad  Party  Problems  in  the  United 

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and  Reconstruction.     1820-1876 


G.  P.  PUTNAM'S  SONS 
NEW  YORK  LONDON 


The  American  Plan 
of  Government 

By 
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Assisted  by  Frankl3m  S.  Morse, 

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